Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/englishpoliticalOOgrahrich Reproduced by DUO PAGE process in the United States of America MICRO PHOTO INC. Cleveland 12, Ohio ENGLISH POLITICAL PHILOSOPHY ENGLISH ♦ t ■ POLITICAL PHILOSOPHY FROM HOBBES TO MAINE BT WILLIAM GRAHAM, M.A. BABRIBTXR-AT-LAW ; raorsssoB op juribfrudbncb and politioal icokomt AT QUKBN'S COLLKOK, BRLFA8T AOTHOR or "TMI ORSBO or •CtlNCa," ''iOCIALlBM, VBW AUD OLD.** Ct74 ' . ' ' • • • LONDON EDWARD ARNOLD 87 BEDFORD STREET, STRAND CP«*Molitical knowledge ....... 84 7. Other Functions of the Sovereign (or the State) ;— To secure Equal Justice, without partiality to the Great — To impose Equal Taxation — To provide Relief for the Destitute Poor, and Work for the Unemployed— In extreme cases to under- take compulsory State Emigration . . . .39 8. Functions of the Sovereign continued ; — To make good Legisla- tion — To duly Reward and Punish — To select gootl Councillors and Leaders in War . . . . . .41 9. Great Merits of the latter |»art of Hobbes' teaching—Antici- lotion of the Theory of Sovereignty of Bentham and Austin— and of their Analytical Method applied to the princii>al Legal Conceptions— Anticii)ation of the Sociologists of the present mm CONTENTS vii rAo> Century— Great results reached by him through Deduction and Analysis, without the aid of History . . .43 10. Influence of Hobbea in the sphere of practical politics in Eng- land 47 LOCKE CHAPTER I On Ciyil Government 1. Locke's account of Primitive Man— His difference from Hobbes — also from Maine — The State of Nature not necessarily the War of all with all— The three " Inconveniences " in "the State of Jraturo " which led to the Social Contract and the establishment of Civil Government— Necessary limitations of the Supreme Tower, especially the Legislative . .60 2. Important consequences from Locke's Theory— Substantial truth in Locke's Theory of Limitations, whether under a Monarchy, an Aristocracy, or a Democracy . . .68 3. Objections to Locke's Political Doctrine— Not verified by History before his time— How some Constitutions made after his time have been the result of a Social Contract— Origin of Government according to the Historical School . . 60 4. Rousseau's Version of the Social Contract— The original Social Contract was bad for the Poor, and only favourable to the Rich — The proper Contract to guarantee the rights of the Poor — Results of this theory applieoned comes to England— Its slow and safe course hitherto . . . . .170 BENTHAM CHAPTER I Works in General— Hit Theory of Morals 1. Introductory . . . . . . .174 2. Bentham's Mental and Moral characteristics— His services aa a Law Reformer and a Reformer of the Constitution— Maine's tribute to Beuthan^ as a Law Reformer . . .178 8. FragmeiU vn Oovemment — LUroductimi to the Frincipla itf Morals and Legislation— Hhe predominant Moral Theories at the time— Theory of Natural Law and Intuition al Theorie s, ' Uke_.&iltler^8 — Relation between flie8e"-^=Tnir^ttempted refutation of these theories— Exposition of his theory— Disproitortion of the Work, moHt of which relates to the mere classitication of possible Offences .... 181 4. Examination of his Moi;al Theory— Its inapplicability in the Sphere of Prudential Action — It takes away the distinction of Right and Wrong, if Conscience and Moral Sentiments bo supiMScd absent- Also the Moral basis of Punishment . . . . . . .190 5. His other theory that we shpujd aim at the Happiness of the Greatest NumW — TmpractlcaljiIiTy~or CTils theory field alike by Bentliam aud Mill— How far we should aim at the CONTENTS xi rAoi Happiness of Others— Distinction of Bentliim's impossible Philanthropy from the " Love and Service of Humanity" of the Comtist . . . . . . .196 Further indictment of Bentham's Moral System — No room in it for Devotion and Sacrifice — How these virtues were originally fostered— Their Instinctive Origin in the Parent for protection of the Young — Their great stimulation in the Tribe or Clan and Nation through War— The other Virtues brought in their Train ..... 202 Sources of his defective Theory of Morals in his Theory of Punishment— Morality conceived to be a scheme of rules enforced by the Popular Sanction, as Legislation was enforced by the Political Sanction— This Moral Code or •' Deontology " not worked out by Bentham . . . 205 CHAPTER II Theory of Leg^islation 1. His Utilitarianism more applicable in the Sphere of Legislation than Morals— The necessary qualifications and limitations —Bentham a Reformer, not a Revolutionist ; in a posi- tion between Burke and Roussean— General Aim of his Reforms . . . . . . f 211 2. Details of his thfeory— TniflAim of the ^flg^H^^^r, tha Oeneral Happiness — HovTToreach this aim — Security and K 4 « ialitj i li rttnTBistribution of Property the principal aims — The chief subordinate aims . . . , 215 3. Why Security is the principal aim, and to bo preferred in case of conflict with Equality— Law alone can give Security^- SecuriCy refers chiefly to Property- Bentham'a omission to consider the Historical Origin of Property , , . 217 4. Property a Creation of Law— How it is good for the Poor as well as the Rich— Evils which result from attacks on Property by the Government — Advantages of the Security of Property — Illustration of this from the reclamation and culture of the North American Continent « . . . . 220 5. How far a System of Equality of Wealth it possible-- Conditions necessary to carry out a Scheme of Equality by Ooyemroent — The sole means of reconciling Security with greater Equality—A Natural tendency to Equality asserted by Bentham — Important qualification of this tendency during the present century ... 228 xii CONTENTS 6. Seouritj BOt infringed by the State taking part of Private Property the better to protect the rest ;— nor for Cultivation of the Arts and Sciences ;— nor for Poor Belief— Argument in favour of Puor-Laws— Should the Clergy be i>aid by the State f—Enunioration of attacks on Security . . .226 7. Power of the Laws over Exitectation— The marks of Good Laws 229 8. Enumeration of the valid Titles to Proi>erty— Proposed new Law of Intestate Succession— Projwsed now OH'enco not re- cognised in our actual Legal System — Approval of the division of Commons in England .... 232 9. General review of Bentham's Theory of the Civil Law— Omissions and Defects— Has not considered the Historical aspect of the question ; denies the Theory of Natural Rights— The task of the Legislator is to harmonise, as far as possible, the aims at General Utility and Natural Justice . . .234 10. Bentham as an Analytical Jurist— I usutlicioncy of the Analytical Method to furnish us with a true Science of Jurisprudence . 238 11. His views on Codification— His offers to Foreign Governments to Codify their Laws— Why they were not accepted — Our own need of Codification ..... 241 CHAPTER III On Constitutional Reform 1. The Best and the Worst Governments according to Bentham— Examination of his Theory that an Absolute Government must be a bad one— His view not supported either by General History or English History— Is an Aristocratic Government necessarily bad ?— A\ipeal to English History during the two periods uf Aristocratic ascendency .... 247 3. Bentham's Remedy for our •' Aristocracy-ridden Monarchy " — How far adopted — The change in the Constitution — The Political Influence of the Crown and House of Lords since Bentham's time — Democracy not dangerous according to Bentham- How far true ..... 259 3. The Future — Analysis of our present Mixed Goveniment — Fusion in it of Monarchy, Aristocracy, and Democracy— The Prime Minister the nearest approach to ourTormer governing Kings 262 4. Present improved method of finding our King — Advantages of it : ensures a ruler of high ability, but not necessarily a great statesman— Why the latter are very rare . . 268 CONTENTS . xiii J. S. MILL CHAPTER I On the Science of Society URc. rAor 1. General — Moral and Intellectual character of Mill — Ilis hopes for Mankind— His Humanitarian zeal — His writings . . 271 2. His Sydrm of Xo//iroblem is the Dynamical one, How one State of Society changes into the following one — Inii>03sibility of the Sociological problem as first conceived by Mill — Simplification of the problem by Comte — His solution ; all Progress duo to the Progress of the Sj^eculativc or Scientific Spirit — Comte's Law of Progress, or the "Law of the Three Stages "—Its relation to Sociology, according to Comte — His Positivist Polity — Mill's Disappointment with it . . . . . . . 287 8. His great Expectations from Sociology— A Philosophy of History, its initial Form— The Philosophers of History of our Century — Tendency of Philosophical Historians to divide and simplify the problem — The new Historical School . . . 294 7. How far a Science of Sociology is possible — What Subjects should enter into it as Sub-departments ?— The chief Social Interest, and the one which influences all the rest, is the State of the Speculative Faculties, both a^ regards Science and Philosophy — Herbert Spencer's conception of Sociology —The great difficulties in the way of constructing the Science . . . . . . .297 8. Relation of Great Men to Progress — How they may be viewed by the believers in a Science of Sociology— Mill's opinion— How far we may look for great Men (Poets, Statesmen, Philosophers, Discoverers in Science, or Inventors) in fntnre— In what xlv CONTENTS directions there ia room for Progress^ in what it may be regarded as completed . . . 802 9. Concluding Remarks as to Mill's view of Sociology— His Defects as an original thinker and constructor— His tendency to lean upon the ideas of others and in consequence to a continual change in his own views — His improvement in Bentham's Utilitarianism, due to criticisms (adopted by him) of adversaries— The sphere of Liberty 810 CHAPTER II On Representative Government 1. Change of outlook in Mill's JtepreserUative OovemrMnt^Qlgai of disillusion in the work— What the Historical School had taught him — His objections to the Historical Theory of Government— Advance on the Abstract Method of Hobbes and Locke . . . . . . .818 2. The true Criterion of a Good Government— Its tendency to pro- mote the general mental advancement of the Community— Ini|K>rtant inference from this as to the most desirable Form of Government — Advance on the views of Locke and the thinkers of past centuries ..... 818 8. His Examination of the opinion that a DcsiKttism would be the beat Form of Government if the Deajwt were good— His Proof that the ideally best Government is Representative Government ....... 821 4. Examination of his Proof —A Representative Government does not necessarily develop a higher type of National Character —Appeal to English History— High National Character of Englishmen under the nearly des{K)tic Tudor Government — Still more in the seventeenth century, when on Mill's Prin- ciples their Character must have been formed almost under Despotism — His theory does not allow for the great stability of National Character ...... 326 5. On his own showing Representative Government is only best for a few Nations, and even with them it may be the wont if Minorities are not represented .... 829 6. Alleged Functions of the Representative Body, not Legislation nor interference in Administration, but Control and Criticism 830 7. Dangers of a Government largely controlled by Labourers is the arbitrary Taxation of the wealthier classes — Consec^uunccs of attempted Socialistic Legisilation— Consequences of Legislative attempts to raise Wages, by fixing a mininmm Wage, or lessen* CONTENTS XV iKC. fAOB ing l)y Law the hours of labour — Just claims of the Worker and of the Employer— The terms should in general be regu- lated by Agreement, not by Law . . . . 833 8. Hia Safeguards against the danger of Class Legislation by Labourers, the lieprosentation of Minorities and Plural Voting —His hostility to the Payment of Members of Parliament . 337 9. The Executive in a Representative Government— How to ensure Responsibility — How Ministers should bo appointed^ and Judges and the Civil Service ..... 841 10. Mill's later Works — General Estimate of the Man and his Work — His comparative failure and waning Influence — The causes . . . . . . .844 MAINE CHAPTER I On Ancient Law and Early Institutions 1'. His Dissatisfaction with the state of Jurisprudence as a Science — The alleged Cause of this unsatisfactory state was . . the adoption of a wrong Method, whether the Deductive d priori Method or the Analytic Method of Austin — The proper Method— The earliest form of Laws and Customs — Agencies by which Laws are successively improved in pro- gressive societies . . . . . . 348 2. His Mistake as to the earliest form of Laws and Customs— The • various Origins of Customs— Later Law not all contained in the primitive jural germs, as Maine supposes — Various Sources of Law . . . • . . . 852 3. The earliest social group or social unit — Inconsistent accounts — The question of the earlier . group still un« certain. ....... 354 4. Property and its History — Maine's two Origins of Property — Stages in the Transition from early communal to individual Property— General tendency through History to Private Property— Early Obstacles to Alienation of Landed Property — Mode^ in which they have been overcome, chiefly Cl'assift- r^tion and Usucapion or Prescription— ^Utility of the latter to the Romans and the Moderns — Influence of Courts of Equity on Proiwrty— Further treatment of the History of Vroi^tij in t\\e Early If ist. qf Inditutionn . . .366 b xvi CONTENTS •ao. rAftt 5. History of the Te«t*mentary Power— Early Freedom of Bequest in Roman Law — Maine's explanation — Later Retreat of Roman Law, under the influence of Natural Law, in favour of the Children— Origin of Freedom of Bequest in English Law . 360 6. Origin and History of Contract— Limited Sphere of Contract in early Times— Causes — Characteristics of ancient Contracts illustrated from Roman Law— The Classes of Roman Con- tracts — Insufficient Treatment of Real Contracts— Difference from Sa?igny as to the earliest Class of Contracts— How far Real Contracts imply private Property — The Consensual Con- tracts-Importance of Freedom of Contract — Exceptions to Freedom of Contract — Difficulty of reversing the System of Contract and Property with which it is bound up . . 363 7. His other Works— T/u- Early Hist, of Jnstitutuvis — DiiWcuMy of his Task, which necessitates an additional inquiry into the Origin and History of Sovereignty, of Legislative Bodies, of Aristocracies, and their ditterent Kinds — Origin of Feudalism — Was the Feudal Lord the Patriarchal Chief who " had passed through the Crucible of Feudalism ? "—His Correction of his earlier theory of Feudalism and of Primo- geniture — General theory of the Origin of Aristocracies — Defects— Omissions in his Work — The psychological explana- tion of the Origin of Property and Contract not sufficiently dwelt on by the Historical School .... 870 8. The great defect in Maine's conception of Jurisprudence, his denial of Natural Law, reposing on our sense of Justice or Equity — His admissions of the great results of Natural Law — What it has done for the Romans, for civilisation, and for the improvement of our own Laws— Great im]>ortance of the Question— Proof of the existence of Natural Rights resting on the instinctive feeling of Justice— But must be supple- mented and checked in certain cases by considerations of Utility— Furnishes the best defence of Property and of Freedom of Contract — Consequences of the denial of Natural Law and Natural Justice — No necessary Antagonism between the Historical Method aud the theory of Natural Rights * . .877 CHAPTER II On Popular Government 1. His Method applied to Political Institutions not quite the Historical Method, but a mixture of History and Deduction CONTENTS xvii — Recent History proves modern popular Government nn. stable— The Wire-puller and Party Government— The most extensive Suffrage likely to lead to a "mischievous kind of Conservatism" — Examples— Popular Education will not prevent this — All Improvements the work of Aristocracies —Consequence of attempts to alter hy law the Distribu- tion of Wealth by the Working Classes— His fear that they will tax the Rich — The necessary scries of consequences — Final conclusion — His fears exaggerated for reasons already given ........ 389 2. On Ihr Nature of the Democracy— The opinion of its irrcsistible- ncss olitical power is so widely distributed without the political knowledge that should accompany it ; knowledge which can only be supplied without adulteration to the many by the educated and more fortunate classes ; and which it is at once the duty and interest of the latter that they, and not demagogues, should endeavour to supply. The political thinkers with whose systems I deal are Hobbes, Locke, Burke, lientham, J. S. Mill, and the late Sir Henry Maine, because, if not all in the first rank, they have been the most inlluential in the sphere of practice. They have all had influence — the first three vast and almost in- calculable influence. Like the Hebrew prophets, they have influenced their age, but, more than the prophets, they have furnished the thoughts which governed the minds of the apparent governors, whether kings or stiitesmen. They have been in a certain sense the true kings. The ideas of Hobbes ruled for years in Kngland, and are even yet a power ; while Locke's book on Civil Government furnished the Whig creed for the whole century before the French Revolution. Still more, the ideas of Hobbes and Locke combined contain Rousseau's ideas, whose doctrine of the sovereign jHiople, so explosive at the Revolution, and so powerful now, is but a blend of Hobbes' idea of the sovereign's oraniiHjtent attributes joined to Locke's idea of the iKJople as the source of political power. The like is true of Bentham, whose chief ideas and methods are to be found in Hobbes and Locke, but especially in the former. Thus his theory of Law, as the conmiand of the sovereign, his analytical and deductive methods, are all in Hobbes. Only one thing, as Maine remarks, Bentham added to Hobbes' doctrine of sovereignty — the utilitarian theory that the sovereign should make the greatest happiness of the greiitest number its chief aim. Finally, the Declaration of American Independence, as ilrafted by Jell'erson, and even the American Constitution of 1787, as shaped by Madison and Hamilton, are INTRODUCTION xxl based largely on the ideas of Ix)cke and Rousseau. Again, Burke for a long time did not pass beyond the ideas in Locke's Civil Government which i>crvadc his early pamphlets, especially his Thoughts on the Present Discontents. It was only when the French Revolution showed him to what dangerous extremes these ideas might be pushed that he threw away his earlier creed, and, after long and deep medita- tion, fashioned a new one for himself, for the Conservatives in England, and indeed all over Europe. And this creed we have in his Reflections on the French Revolution ; in which we have a new theory of government and society and a new way of looking at their problems, — in fact, that rare thing, a new book on politics, with a new method, in which there is little left of Locke, though something considerable of Hobbes appears. So powerful and far-reaching in the political sphere may ideas be, nnd so limited the supply of original ones. §2 For a further reason I have limited myself to these six thinkers. Amongst them they sufficiently illustrate the different schools of political thought— Conservative, Liberal, Radical, and even Socialist, Still more, they represent and exhaust the methods of discovering truth on the subject. Thus Hobbes and Locke employ the pure Deductive Method as rigidly, as the geometrician, who draws conclusions from his definitions and axioms, wlien they assume abstract men, originally free and equal, and reason to what such homogeneous human atoms, all subject to the law of nature, must or should do. That is to say, they employ a bad type of deduction and one unsuited to political science ; but by no means always, for in other cases where they start from sound principles, where the matter is not complicated, where causes are not many and entangled or their effects blended, they attain to important and permanent truth ; and this is especially the case with Hobbes, whose original genius and penetrating glance more than compensates for his sometimes defective logical process. In like manner Bisntham relies solely on the Deductive Method accompanied by Analysis. He forgets, in common with xxii INTRODUCTION all who rely solely on deduction, that in social and political phenomena, plurality of causes is at work which makes it wrong to refer a given effect back to any one cause singly, not to speak of the reverse difficulty, so near to impossibility of tracing or accurately measuring the effects of known causes. Thus he argues deductively that Representation is the only thing that can produce identity of interest between the governed and their rulers — an argument which Mill, his former pupil, rejects on the ground that identity of interest may very well come from the sovereign and subjects, both desiring strongly the same things, as in the case of Henry viii. and Queen Klizabeth, who both had at heart the same main objects as the l>ody of the people. Again, he argues, that if power is placed in the hands of the people they cannot abuse it. The majority may indeed sacrifice the interests of the minority, but the happiness of the majority is the true end of government. But it is urged in reply by Elaine that IJeutham assumes that the majority know their own interest, and what will best promote it, which is the reverse of the truth. And thus they might fail to secure their own happiness or interest, while sacrificing all other interests. But perhaps a moral and [political thinker like Bentham n\ight inform them what constituted their happiness and what things would best pn)mote it, so far as it depends on the action of government j and both these things ho attempts to do by deduction and analysis in his Theory of Legislation. In reality, in this work all that he recommends to the government is to '' leave alone " in the sphere of industry, and to aim chielly at security to the person, property, and reputation, and a gradual approach to efjuality, on the ground that those ' things will most increase the happiness of the greatest number. Now, to aim at security will promote general happiness, but that laissez /aire and greater ecpiality would best promote it, are both extremely doubtful proiK)sitions. According to Mill, the Historical Method is the proper method in political incpiiries. He learntMl this, he tells us in his Autobiography f when he was writing the last book in his LogiCt entitled the "Logic of the Moral and l*t>litical INTRODUCTION xxiii Rcioncps," and ho loarnod it hom. Comto ; so that wlion he pat down to his task ho had no tnio idea of the right method, having told us earlier in the work that it was the deductive. He now calls it the Inverse Deductive Method, because the generalisations are to he inductively gathered from history, and verified by deducing them from laws of the human mind, by which he appears to mean general history instead of the liistory of the chief social interests, such as law and political institutions. And thus having no firm or clear hold on the methoeyonrogrcssive people as a fact, and to ascertain the causes of tliem, which might lie in the general desire for improvement, or it might even in some cases come from the fact of a class getting the upper hand, and shaping the law accordingly. But if we could find the embryonic origin and could trace the subsequent changes, if we could find the whole chain of causation, or rather the various impulses in the progressive movement (supposing, for example, a case of progress such as is shown in Koman law) from first to the final stages — we should, according to Maine, have a scientiHc account of Law ; and in like manner of Political Institutions, or whatever else. We should have a science resting on historic inductions, but in which, nevertheless, large use is made of deductive reasoning by those who have most successfully worked it, like Maine in this country, or Savigny in Germany. The great lesson of this method is that forms of govern- ment, as well as laws, are related to the stage of development, the character of the people, their physical and general en- vironment, even to accidents of history — a point of view which excludes all absolute arguments ; that the ends of government in like manner are different — they may be self-preservation, war ami conquest, culture, the general happiness, justice ; and consequently the amount of individual freedom allowed will be very different, and less in former ages than in our time. A great end may have even been the maintenance of the national religion in its purity ; in which case toleration of different religions was formerly found to be impossible. But (to continue the question of proper methods of inquiry) may we not also reason from certain a priori principles — principles not gathered from experience but from our instinctive intuitions of justice, the germs of which all men have (and even some of the lower animals apparently), which grow clearer INTRODUCTION xxv with advancing civilisation, which arc 8])(Miially fostered by great hiwycrs, moralists, and philo80i)hers 1 In a word, may we not attain to an a priori science of natural law or natural rights j and use and apply its principles deductively to new cases, as is certainly still done in courts of justice by our ablest judges t I believe wo may, but more in the case of private than public law, more with reference to private rights than politi- cal rights. I believe this method of reasoning is also legitimate, and that, though it has been temporarily eclipsed, first by the success of Bentham's Theory of Legislation, and next by the Historical ^lethod, which Maine thinks irreconcil- able with it, it will be found indispensable to employ it so long as man is a moral being who has the ineradicable intui- tion of the right ; who believes that there is a justice, and that the just ouyht to bo more and more realised. Now, wo do not know very clearly how to promote tho general liappiness by new laws, owing to the vast complication of a modern society ; and we do know that what legislators meant for good some- times does harm. Jhit we have ideas, more or less clear, about justice. This is indisputable fact, and it is impossible to have the ideas without the accompanying feeling that they might to be realised in a rightly constituted society ; subject to the con- dition that the attempt to realise them would not decrease the happiness of the greatest number. Utility and justice generally do coincide : where they do, justice should take the lead ; where they do not, it should give way to considemtiohs of utility. Where this is not admitted, as it sometimes is not, the society so far is still in " a state of war," as in the case where the subjects of the same government have different civil or political rights. Here might makes right. I am far from saying that might is not sometimes legitimate, but it cannot be a harmonious, or happy, or hardly even a prosperous society in which it is so, and in which, as a consequence, the rules of justice and of morality are largely suspended, between tho individuals so unequally treated. On the question of method, Burke occupies a peculiar and somewhat ambiguous position. In one place he defends tho method of pure deduction after the manner of Hobbes. Thus xxvi INTRODUCTION he says " i)olitical reasoning is a computing principle, adding, subtracting, multiplying, and dividing, not metaphysical quantities, but true moral denominations." In another place he Ifays down that " nothing universal can be rationally affirmed on any moral or any political subject," which is nearly the position of the Historical School. He does not positively deny the alleged original social contract or covenant, but he inchnea to draw conclusions from it hypothetically against the doctrine of the Rights of Man. In general he reasons from the established fact, assumes that what is is what ought to be on grounds of utility, or from the evils that the contrary doc- trine had brought to France, which he thinks can be shown by deduction to be contained in the principles which he terms "a digest of anarchy." On the whole, though ho employs the Deductive Method, it is employed on principh's either obtained from experiencjo or history, and so he belongs rather to the Historical School. And the fact is, too, that in his Reflect ions on the French Revolution he has a practical end in view, tf) which the establish- ment of theoretical principles is subsidiary. He wishes to produce a conviction that the Revolution is an evil, and for the purix)se he employs not only deductive reasoning, which is frequently acute and sound, but also all the resources of .a splen- did rhetoric likely to influence the feelings and prejudices and to act finally on the judgment. This latter is fair when employed for a practical end believed to be good ; it is (juite irrelevant to the discovery of political truth, and does not concern us. We are only concerned with his real political convictions and the reasons urged in favour of them, which are frecpiently original, always weighty, seldom couched in abstract or absolute form, but "clothed in circumstance." Then there is what is called the Analytical Method, employed by Beutham and Austin in jurisprudence and |M)litii'al science. It consists rather in the logical process of analysing, defining, and dividing the leading legal conceptions, such as .sovereignty, law, and the conceptions which law implies — command, duty, sanction, legal right, act, will, intention, etc. It ana- lyses all these notions, assigns their divisions and subdivisions, INTRODUCTION xxvii defines alike tlie higher and lower conceptions. We obtain from it a skeleton scheme of positive law ; its various kinds, their divisions and subdivisions, with all the ideas and prin- ciples involved in their different grades and classes, genera, and 8})ecies. Now, all this process, according to Maine, is scientific ; it is oven extremely useful to the student in furnish- ing clear and distinct ideas ; it has a wonderful effect in clearing the brain ( Karhj History of InstUutiom). But ho says the method is inadequate to furnish us with a complete and real science of jurisprudence, because it does not answer the real questions, the questions wo are most interested in asking — Why did men imi)ose these commands on themselves ^ how are they connected with each other, and especially those that precede with those that follow? Analytic jurisprudence cannot answer these questions; the present analysis of our notions of a Will, or Property, or Inheritance, or Marriage would only hold for the present time ; in the past these notions were all very different. The real question relates to the origin and stages of all these things, a question which only history can answer. In short, the suggestion is, that the Analytical ^lethod serves only to clarify our legal or political ideas, to arrange them in order, to classify and catalogue them ; it gives us a fuller possession, a clearer distribution of old knowledge, but does not add to it, which it is not in the nature of mere analysis or dissection of ideas to do; for when certain assumptions have been made, Elaine thinks that the "great majority of Austin's positions follow by ordinary logical process." Now, there is a certain truth in this view ; and some writers are perhaps rather prone to think analysis is the one way to political wisdom, and Austin and Bentham rest too much on this method. But it is a mistake, on tho other side, to think that new truth cannot be reached by careful analysis, Bupiwrted by deductive reasoning. We have an example to the contrary, where Professor Holland, in his analysis and theory of contract, corrects Savigny's view. Finally, there are many examples in the Leviathan of Ilobbes (the first to employ tho methoil) of a successful use of acute analysis and ingenious deduction. xxviil INTRODUCTION 83 So far 08 to the men and their methoiU. As to the books dealt with they are:— The Leviathan of Hobbeaj the Ciml Oovemifieni and Letters on Toleration of L«Kike (chiefly the first letter) ; the Reflecfiom on the French Revolution and An Appeal from the New to the Old Whigs of liurke (those jmrts dealing with the general questions of jKjlitical theory and his Philo- sophy of the Revolution) j the TJwonj of Legislation of Bentham (first practical book, which is rather fully analysed ; the once celebrated Book VI. of his Logic^ entitled "The Logic of the Moral and Political Sciences," which con- tains his theory of progress, and an imperfect account of the Historical Method — the only part that concerns us; finally, the Ancient Law and Early History of Institutions of Maine, which contiin the best English siKJcimens of the application of the Historical Method ; also his Popular Government^ which partly draws \\\^\\ history, to suggest the conclusion that denuxiracy is by no means to be considereply the answer to the first of these, the metajihysical, which included the cpiastion of natural religion ; Hobbcs the answer to all three of them, but especially the moral and political questions which with him are insepar- ably connected. It is also to be noted that in addition to the need of know- ledge there was a spirit of disinterested curiosity in the air, a desire for knowledge for its own sake, as well as for the advantages, " tho fruit," as I'acon called it, which it might bring to men. From tho Renaissance onward, there was this strong desire not merely to acquire the best classical learning, but to make conquests of hew knowledge, and vast dreams were aroused and stimulated by what had already been discovered in astronomy and physics. The thirst for knowledge showed itself in all the grejit minds of that great, hopeful, and agitate«l seventeenth century; in Bacon, Galileo, Descartes, Spinoza, Gassendi, as well as in Hobbes. Descartes was not merely an abstract thinker, but, like Bacon, he dreamt of great discoveries from oxperimpnt, just as Ikvcon dreamed of moral and i>oliticaI 4 ENGLISH POLITICAL PHILOSOPHY discoveries, as well as physical ; while Hobbes, the former secretary and pupil of Lucon, liad even projected a vast and complete system of philosophy (something after tlie fashion of Herbert Spencer's), embracing physics, metaphysics, psychology, and civil government, including the duties of subjects. He did not finish this work, for, as he tells us, whilst he was *' con- triving, ordering, and passively and slowly comix)8ing, it so liappens in the interim that my country, some few years before the civil wars did rage, was boiling hot with questions concerning the right of dominion and the obedience due from subjects, the true forerunner of an approaching war, which was the cause, the former parts being postponed which ripened and plucked from me this third part." And perhaps, fortunately ; for the part dealing with physics, at a time when j)hysics was in its infancy, must have been of inforii>r importance. It wouUl indeed have been desirable to have had from Hobbes Ids complete views on metaphysics, on account of the sanity and clearness and depth of his mind, and on psychology, on account of his acuteness and originality, as shown in some specimens which appear in the Leviathan. Fortunately we got the third and most important part, some of which had already appeared in 1642, but which then made no great impression. The substance of it, however, much improved and enlarged, he gave to the world afresh in 1651, just when the civil war which temporarily settled the question of the rights of sovereign and subject was ended by the defeat of the Royalists at the battle of Worcester. §2 The book is divided into four i»arts : the first on Man, the second on Commonwealth, the third on a Christian Common- wealth, the fourth on the Kingdom of Darkness. AVe are mainly concerned with the second, but as the actions of man in political societies or commonwealths depend on the nature of individual men, a brief jueliminary actumnt of the latter, such as psychology reveals it, is desirable and necessary. It should be observed, however, that mental science, or psy- chology, hardly existed Ijcforc Hobbes' time, and that in fact lie HOBBES (j) himself in this book, whilst drawing the portrait of man, lays the. foundation of it. The portrait drawn of man in general, of human nature as it essentially is, if not a very flattering, is a very remarkable and original one. It was the first original attempt since the time of St. Paul's Kpistles to tlraw man as he is, and this time from a new point of view, the point of view of ])hysiology and psychology, and by one resolved ** nothing to extenuate or aught set down in malice," but to put in only what he saw, although he may have made omissions that he did not see. And first, man is an intellectual being ; that is, in addition i^ to his live senses, which convey impressions from the external world, and furnish the raw materials of ideas and experience, he has imagination, which is a fainter kind of sensation, •' decaying sense," as Ilobbes calls it, and memory, which is only imagination over again, plus the feeling of some past time to which the imago is referred. Lastly, wo havo "trains of imagination," or, as wo now say, trains of associated ideas, which are either "guided," that is, linked together according to some principle, or "unguided," as in reverie, when the imaginations come and go at random. These, namely, sense, imagination, memory, trains of ideas, are all tho native mental faculties that man possesses, and all men possess them. There is "no other thing necessary for exercise of them, but only to bo born a man." From these together wo get experience and j)rudence. And hero we havo tho first account of tho origin of knowledge from mere sensation, a theory which Locke improved upon when ho affirmed that all knowledge came from sensation and reflection. Any other mental faculty that wo possess we owe to tho inven- U^' tion of language, " tho most noble and profitable invention of all others ; for as to printing it was no great matter." Amongst these faculties is reason, or rather the faculty or power of reasoning, by which our kncTwledge and our native faculties are vastly increased, although the advantage is almost counter- balanced by the " privilege of absurdity " which it carries with it, " which apiiears in no other creature but in man, and most . of all in philosophers." ' 6 ENGLISH POLITICAL PHILOSOPHY V Reason is, howevef , wlien rightly used the mother of all the sciences, which extend no further than as their subject-matter is susceptible of addition and subtraction. This applies to arithmetic, geometry, mechanics, logic, even law and jwlitics ; for all arithmetic is contained in the four eknuentary rules, but multiplication can be reduced to addition, and ilivision to subtraction. The like liolds uf geometry, which deals merely with th(5 addition and subtraction of lines and ligures ; of logic, which deals in like manner with the three propositions of syllogism. Nay, even of politics it is true; for writers on politics " add together pactions to find men's duties, and lawyers put together laws and facts to find out what is right and wrong in the acts of private men." ^ Truth iu the sciences depends on right definitions purged from ambiguity, as in geometry, which is a tyi>e of all the other sciences ; a doctrine which, though there is rfome truth in it, has great error, for assuredly his own practice transcends his theory, that all truth depends on right definitions, and that reasoning on political and moral subjects extends no further than addition and subtraction. For whence, one might object, comes the right definition 1 liut let us turn to his more interesting, and from our point of view more important, picture of the moml man, as he issues from the hand of nature. This delineation is more faithful, is more true to life, than the intellectual one. The outlines are firm and sure, are drawn with a master's hand. Unfortun- ately some imix)rtant features are omitted, whose omission changes the whole expression and character, and give us oidy a maimed and imperfect, not the whole and real man. It is true, he was only bound to describe the man of the far past, the j)rimeval man, who would presumaldy be more like his sketch; but llobbes also thinks the natural man beneath the civilised man, the same at all tunes. It is this universal being he is trying to describe, and the charge brought by later moralists and psychologists is that he omits imi>ortant featiues. '■ He notes truly, and he was the first in modern times to note it, that man is moved to action, not by his intellect or reason, but by his appetites (including aversions), his desires J HOBBES 7 ami passiQiiR. In a remarkftljle cliapter on " The First liegin- iiings of Voliintiiry Motion " he brings out this clearly and vividly. Fundaniontally, man, like all the animals, is a being who seeks naturally and instinctively his own conservation. He is a selFTnt ere sled, or if you choose to call him so without imply- ing blame, a selfish being. His interests are all bound up in, all derived from, all centred in, self. All his springs of action aim either at self, its preservation, enlargement, or greater gratification. The first springs of action are the appetites, which evidently refer to the preservation or pleasure of the individual. Then come the desires, which are various, but which call mostly he reduced to the one pred ominant 013 the C&itP , of .l>0>y?!r^ This desire, which aims at the expansion of the self or ego, besides its primary form, takes all sorts of forms, the love of wealth, of knowledge, of honour; even benevolence is by him resolved into ** love of power and delight in the exercise of it." He does not allow of any disinterested quality, any quality whose aim is the direct good of another without thought of self; he omits parental and filial affection, friendshij), or love of one man to another. He does not admit of sociability as an active original quality, by which men are attracted to each other, altogether apart from any thought of the advantages association might bring. It is true, he recommends sociability on grounds of reason as a virtue, but it is not based on a natural primitive feeling or instinct. Ho distinctly denies that men have any pleasure in each other's company, but, n\\ the contrary, where there is no jwwer to keep them all in awe, that is, where there is no law or government ; and he gives j ingenious reasonings in favour of his view, which the dangerous experience of i>coplc who have been in new settlements on the outskirts of civilisation, where law is at a distance, tends somewhat to confirm. Still there is to be set against all . this the undoubted fact of sociability, which has played a great l^art in drawing men originally into society and maintaining them therein. Even comjjasaion, the sacred feeling which has done so much to humanise our world, and to mitigate its worst aspects, he 8 ENGLISH POLITICAL PHILOSOPHY •> resolves into fenr or *' grief at the calamity of others, from the imagination that the like calamity may befall ourselvus," that is, an accidental uccumpaniment of the original feeling of com|>asAion he makes the main thing ; while with l)ettcr reason he makes the passion of fear, the fear of spirits invisible, the root of religion, or rather of what In* calls the " religion of the Gentiles," that is of all, except that of the Jews. These are the chief qualities in man. Here you have his chief features, moral and mental. He is the same at all times and in all coimtries. Moreover, and it is an in4X)rtant point in Hobbes* theory, men were originally all equal or nearly so. His N/ proof is interesting. Men were origuially equal (as well as free), because men are so still in the main, the apparent dillerences coming from education. "For when all is reckoned together, the ilillerence between man and mam is not so con- siderable as that one man should therefore claim to himself any beneiit to which another may not pretend as well as he. As to strength of lH)dy, the weakest has strength enough to kill the strongest by secret machination or confederacy with others"; and ** as to the faculties of the muid," he adds, ** I find yet a greater equality amongst men than that of strength. Leaving out of count the arts founded upon words, and especially that skill of pnxieeding upon general rules, because they are not native faculties, men are on a tolerable equality." True, they do not think so; but this is duo to a vain conceit of their own wisdom ; others they readily allow may be " more witty, eloquent, or learned, but not more wise; for they see their own wit at hand, others' at a distance." Dut the best practical proof of equality is that each one is satisfied with himself and would not exchange with another, " as there is not onlinarily tt greater sign of the etpial distribution of anything than that ^ every man is contented with his omi share " ; and of course if men are still so e(|ual, all things considered, they may be assumed to have been still more so in their original con- dition, before they had learned the "arts grounded upon words" which make so great apparent dillerences between them. Now suppose a number of these self-conserving, mutually HOBBES 9 repellent, but equal human atoms existing in a primitive country, what would happen ? They would not be drawn into company from love or sociability. On the contrary, they would rather keep scattered and away from each other so far as their repelling nature goes, like the former savages of Australia. The "kindly human face" as it appears to the poet does not exist for them. What would happen Ilobbes will tell us ; and if you grant his account, or even half his account of man, to be true, he will tell us rightly what must happen. § 3 It follows from the presumed equality of ability that if any two (or more) desire the same thing which they cannot Ijoth <^"Joy> whether a plot of land, an attractive woman, or whatever else be desirable, "they become enemies and in the way to their ends, which is principally their own conservation, some- times their delectation only, endeavour to destroy or subdue one another." It follows rigorously if these units were such as postulated by Hobbes, egoistic equal beings, necessarily seeking their own conservation aneace, a man should be content to abandon his right to everything so far as others do the same. The third law is that men perform their covenants; the fourth enjoins gratitude for favours ren«lered ; the fifth, general complaisance ; the sixth, pardon for oU'ences on rei»entance ; the seventh pro- hibits excessive revenge or cruelty ; the eighth, words of con- tempt for others or signs of contumely. Add an acknowledgment of equality ; no reservation of rights that is not general ; that judges should deal impartially ; and one or two more of minor im^Kirt to complete the list. These laws of nature prescribing jiistice, mercj^gratitude, etc., HOBBES 13 may be all summed \ip : Do not that to others tliat you would not Imvc done to yourself, which is the golden rule of the Gospels put negatively. They hold indeed in the state of nature, they are obvious deductions of the reason, but being contrary to men's passions, — self-partiality, pride, desire for revenge, for gl()ry, etc., — will not be observed without a common power to compel observance. And it would be unreasonable to expect one man to observe them where the generality disregarded them. This would be merely " ottering himself as a prey and to his cevtaiii ruin." As to covenants (contracts), in jiarticular, they arc but words and idle breath, without the public sword, of " no strength to secure a man at all." And that property would be insecure in such a state is shown wherever men have lived in. small families without any central (or civil) government, in which robbery has been held in honour ; and no laws being regarded but the laws of honour, they have left only to those robbed their lives and instruments of husbandry ; and the like still holds of kingdoms. A union of a small numWr will not suffice in such a state for general security. The number necessary depends on the strength of the possible enemy, and must be sufficiently great to deter him from attacking it, and be the number ever so great, if they act according to individual judgments and impulses they nullify each other, and may be easily subdued by a smaller number ; and even if there be no common enemy they will make war on each other without a superior controlling power. It is certain that such a multitude or mere aggregation will not observe the laws of nature, justice, mercy, etc., in the absence of a common coercing power ; for if they could, a still greater number or even all mankind might do so, and there would be no civil govern- ment at all, and no need for it, as there would bo peace with the original natural freedom over the world.* Nor is it sufficient that they have a temporary head as in one battle or in one war (as was sometimes the case with the Red "*- ' This is the ideal of our present anarchists and-«ven in the remote future of the disciples of HcrlKsrt Spencer, i>sxgholo tfj^- which leaves out the fact of sociability, a natural principle which attracts men to each other, is -defectiv e. It is defective on the moral side in omitiing,.A^5il}i9£!^}?iL!l^'^^^^^®^» ^"*' **" ^^ li(?rc defective on the political and social side in onutting a prin- ciidc, which more even than language is a bond of social union, and which made some kind of society possible before coercive governments were fonned. And this is admitted by Locke, who, like Hobbes, believes in the social contract as the origin of governments. The " (Uffid^BPff " 9f-M9h^9Ji\S^JjLSi which Hobbes speaks, would also exist in the state of nature, also the " grief " or Uneasiness in each other's society, but only occasion- ally, the sociability being a more generally diffused fact, being in fact a sine qua non of any permanent society, political or natural. A Ilobbist might indeed deny the universal sociability by pointing to some savage tribe8~Tncc"^fr09iGr of AnBtraHa or^ Tasmania, who lived in the isolation of single families; but AS matter of fact such cases have been extremely exceptional. Moreover, the question is one of psychology as well as of obscr- i6 ENGLISH POLITICAL PHILOSOPHY vation and history, and psychology tells us that man is a sociable animal even in the stage of childhood, a .'ipoliticaLauimal,'- as Aristotle calls him, and what he is ho always was, according to Hobbes. But if this be admitted, a ditfercnt account of the state of nature than the *.* war of all with all " would have to be given, as, in fact, later speculators on the state of nature, like Locke and Rousseau, have pictured it (luite dillVrently, the latter representing man in it as a very noble and amiable being, and life in it as the happiest possible for him. Moreover, Sir Henry Maine tells us that the little we know of the primitive man is rather against the alleged fact of his quarrelsomeness. Still he admits that the tribes and the heads of tribes were quarrelsome, though individuals inside each group lived together amicably under a reign of custom. The ditlcrenco would be that instead of a war of every man with every man, there was a state of internecine war of every tribe with every tribe so far as they came within each other's range. This was indeed very much the case, only it was ended not by a social contract made by all the chiefs, but sometimes by leagues, but far more frecpiently by conquests, the survival of the fittest and strongest, and the slavery of the rest. Then as to the alleged contract or covenant, it was i)ointed out long ago by Hume that there was no proof that it ever was made. It is historically baseless. It may seem strange therefore that not oidy Hobbes, V)ut Hooker and Grotius before Hobbes, all held it, that after him IxKjke and Hutcheson and lilackstone held it, while there are even some traces of it in Ihirke's political writings. And the reason is that there are only three possible [explanations of the origin of government, namely, either force, \the voluntary conferring of it by the people on one or a lx)dy, pr finally patriarchal authority, arising naturally, gradually enlarged, and as the family expands made hercdiUiry. Hobbes |\vas probably not aware of the latter;^ he was aware of both /the others, but shows that they may be reduced to one, when \tho conquered peoph; consent to bo governed in order to save their lives ; this case being assimilated to the case jjrimarily and mainly discussed where all Or the majority agree to transfer ' Though he Bitciikii us if ho was awaru iu chap. xvii. uud chup. xx. HOBBES 17 tlicir })owers in the natural state to the sovereign one or few. Tlio truth is tliat force was tlie origin of most existing govern- ments. Lot us suppose, however, that they originated in a I social contract as conceived by Ilobbes, and let us try thence ( to see his tlieory of sovereignty and sovereign attributes. .^ 3 Existing governments have originated in force, not in a social contract. I'ut each and every government niust have certain powers or " rights " or " faculties," to use Hobbes' words. I^t us see how lie deduces these from the original social contract and the ends for which it was made. f In the first place, having called into existence one form m government, the covenanters' power of creation is gone. They cannot, without the consent of the sovereign, change their mind antl apiKiint another, as the earlier agreement vitiates or makes null a later one. They cannot therefore lawfully or in reason disobey him (supposing the sovereign to be an individual), or attempt to defwse him, not even if lie acts arbitrarily and tyrannically. He may 'act arbitrarily, take their pro])erty, restrict their liberties, imprison their j)erson8 ; it is not in general his interest to do so, but should he do so resistance would be unlawful and wrong ; as a cure, it would be worse than the disease or evil, while it would defeat the end for which they appointed him sovereign, as it tends to bring back the war of all with all. y In the second place, the sovereign is necessarily appointed unfettered by any condition or covenant on his. side, >vhether expressed or tacit. The sovereign power is necessarily un- limited in whosesoever hands it is placed. The sovereign is only subject to the law of nature ; if he violates it, he is responsible only to Goowers in howsoever arbitrary a manner. Most of these powers all governments possess. Two of these (and two only) are dangerous, the power of acting arbitrarily where there is no constitution intended to limit such exercise of despotic i>ower, and where there is a constitution the power of suspending fundamental laws; and the power of governing doctrines, j)olitical or religious. Some restraint on licence is ' Chttp. xviii. HOBBES 3t rccinirod under every government, but freedom of speech and writing sliould be the rule in mcwlern civiliHed countries. The first of these is a fundamental ])oint with Hobbcs : that the sovoroign cannot, in the nature of things, accept the sovereignty under a condition, because tose he has diverged ever so little from your terms. In fact you wish to retain the essence and substance of the whole by retaining the right of dismissal, to make me your agent and dismissible servant, while you remain principal and master. And on these terms, and 80 understood, I must decline the honour you would give mo and the fettered responsibility you would place on me." And, in fact, at the sup{K)sed beginning of government, or in HOBBES ^ 23 early times on the election of a king (suppose), as when the Israelites, on the nomination of Samuel the prophet, accei)ted Saul as kinp, it would have been better to exact no covenant or condition from the sovereign ; and, indeed, from what wo know of history, it would be most unlikely that a rude people wouM think of imposing any on the man of their choice, Thoy would probably select one who was bravest, wisest, most powerful, the ablest captain generally ; and they would let him do pretty much as ho pleased, just as early barbarian kings or Celtic chiefs had no limit placed on their power. "Let the Chief do what he pleases," was the rude, half-unconscious thought of the governed tribesmen, " j)rovided he protects us from our enemies, and does justice amongst us " ; which was something like the motto of the liegemen of the feudal chief, " Spend us and defend us." Absolute monarchy did not originate in the way Hobbes supposes ; but if it had done so, or however it arose, the argument of Hobbes is sound. The interest of the one and the many is largely coincident. It is his interest that the subjects be wealthy and happy and brave ; it is his interest therefore to protect them against internal powerful ones, as well as against external enemies ; his interest as well as theirs to find able and honest councillors, just judges and administrators, and skilful generals to assist him. True, he may overtax them, take too much of their goods, exact too much service for liis own use or that of his personal friends. He wo\dd tjike their substance certainly for the public need as well as for his own, but then he would let no one else unjustly plunder them. He would, of course, never drcara of altering their laws and customs, to which ho was attached equally with themselves. Nor yet would ho interfere with their national religion. Such an impious thought would never enter his head. On the contrary, he would defend their religion against all outside assailants. Only a very excep- tional monarch, like a Czar Peter, would think of civilising and raising his subjects by the introduction of better customs and useful arts ; and only a great legislator would think, and that but rarely, of devising new laws or institutions. a4 ENGLISH POLITICAL PHILOSOPHY Thus there were no conditions fettering the sovereign at the Hrtit erection uf monarcliies. The idea would hardly arise in the mind of Hobbes' contractors under the suppsed circumstances. Still less can we sup^iose uny limiting condition in the case of government by con<]uest Lut the idea did occur to the minds of Knglishmen in Hobbes* day, and it had taken possession of an increasing number of minds in England and in Scotland too when the matter of religion was touched. They saw certain great evils from unrestrained government that did not exist during the Tudor monarchies, and men were all for imponing a check which was not in Hobbes' social contract, but which they thought was contained in the principles of the Kngliuh consti* tution, or, if not, they meant to insert a new check by a change in constitutional law. They wanted, in fact, a 7iew social con- tract with the king's attributes curtailed, having been found to be dangerous and most disagreeable ; while a few wanted the sovereign iKjwer wholly withdrawn from the king, and given to the Parliament, or rather the House of Commons ; that is, some desired a limited Monarchy, some a Hepublic with a revised constitution. There was a struggle which filled the seventeenth century whether the king of England should be a monarch, an ahsolute nionarch, with all the powers that Hobbes claimed for him. The struggle was carried on with varying fortune. In 1649 Mnonarchy was alxjlished, and England was made a Republic ; then in 1653 came the desjjotic rule of Cromwell with all Hobbes' powers ; then, two years after his death, in a torrent of enthusiasm, the Restoration, with the king's jjower but slightly checked. At the end of Charles ii.'s reign ho Was nearly absolute, and ilanies ii. was in the like iMtsition, which he forfeited as well as his crown by attempting to carry out Hobbes' theory of sovereignty. The final result was the expulsion of the Stuart line, and the calling in the House of Hanover, the two first prin»es of which were cttntent with a diminished prerogative; the attributes which they parted with passing over to the Whig nobility, and the House of Commons largely controlled by them. The sovereignty, the HOBBES 25 mnnua })nipniia^ paf>9cd to the Revolution Families for fifty years ; then after another short struggle on the part of the Crown it was divided again between (leorge iii. and the Tory landowners, and our government was not unfairly described by l>enthnni during the struggle before the Reform Bill as an "aristocracy-ridden monarchy." Finally, after three Reform liills, we have come to popular government; a mixture of aristocracy and democracy, with even something of monarchy in it in the person of the Prime Minister, who, if he be a great man, may exercise almost as much real power as a former king, subject, of course, to constitutional usage, a wholesome restraint which is scarcely felt. Parliament has now got all the sovereign attributes that Hobbes claimed as inherent in the sovereign, save the power of governing doctrine, which it does not desire. It is the legal sovereign, it is not subjec^t to any restraint except from rules of morality (llobbes' law of nature) and constitutional usage. It is not subject to the civil law, nor even to any particular part of the constitutional law j the only check on its qualified omnipotence being, as Professor Dicey observes, the internal one coming from its own nature, and the external one, the fear of provoking resistance.^ It is the " legal sovereign," though in a certain sense the electors are the " political sovereign," as they can reduce the members to the position of agents, and they can refuse to send anyone to Parliament unless he pledges himself to their wishes: powers, however, which they very wisely seldom exercise. . Hobbes has been blamed for granting such extensive powers- toUiy the sovereign ; he has been called the apologist of despotism. But y the fact is that nearly all these powers are implied in the very notion of sovercigtity and government, and the ends for which it was created. Whether these ends be, as with Hobbes, peace nnd safety, or with Bentham the greatest general happiness, government must wield the public sword, must have the power of taxation, and alone be the judge of its amount ; and since it can make any laws it cannot 1)g restrained by any, pnce it caft alter the constitution it is not subject to it Tliey are very • Dicey, Law of the CoitatUtUioiit chap. i. pp. 73^76. a6 ENGLISH POLITICAL PHILOSOPHY extensive powers, and might be dangerously abused. In par> tici^lar there is one attribute that cannot be conceded. We .could not concede to any government the power to prescribe pur religious belief, or to compel us to conform to any religion, jnor yet the right to take our property arbitrarily, and beyond ^hat the public service requires, without giving compensation. Y The sovereign powers are not so much deduced by Hobbes from the original social contract as from the ends of government at all times, so that, even if we were now beginning government (making a new social contract), we would see the need of giving most of these powers to the govemmcut. He may be wrong in supposing that this was the original way in which government arose, but, however it arose, its very meaning and end requires that cort.;un powers be given to it, of the kind pointed out by him. The less the better, say some,* for they will be certain to be abused ; and it is here only that a question arises. Hobbes has stated them in such a wide manner that they were very likely to bo abused ; but the real question in his time, the question in keen debate, was. Who should exercise the powers, or who shoidd have the greatest share of them, King or Parliament ; while Ijoth were willing that the powers should be wide. Closely connected with his doctrine of sovereignty is his jmmarkable teaching (chap, xxix.) coni'uruing the things that r w^ken or tend to the dissolution of the commonwealth. A commonwealth well made should last for ever, at least should not die of internal disease. H it does, the fault lies in the makers and orderers for want of the art of making lit laws to square their actions by, and for want of humility and jiatience. Usually the people lack an able architect, and so are jmt into ** a crazy building." That is, for M'ant of good legislators at the tirst founding of stiites, and for want of power afterwards in the people theuiHclves to make tit laws, the government or house will " assuredly fall \i\K>n the heads of their ))Osterity." ' Ky, Taiiie, La licvol^Uion^ vol. iii. |i. 132. HOBBES ja7 He proceeds to enumerate the infirmities of a commonwealth. The first is that which arises from " imperfect institution," J. * which resembles the disease of a natural body from a defective procreation. A king, to get a kingdom, is content with less than full sovereign power, less than is needed for the pence and defence of the commonwealth. William the Conqueror made this very mistake after the Conquest, when he took an oath to respect the liberty of the Church ; a mistake which wrought perpetual trouble and danger on the kingdom, especially in Henry ii.'s time, in his quarrel with Becket; and again, William Rufus did the like, when he enlarged the power of the barons in order to have their helj), by conceding to them a degree of power inconsistent with that of the sovereign, by which they were able, later on, by foreign aid, to defy their king. The same mistake of a divided sovereign power appears in "^ Roman history, in which neither Senate nor People pretended to the whole power. This led to the sedition of the Gracchi and Others ; then to the civil war between the Senate and People ; and finally to those between Pompey and Cnesar, which led to the destruction of the Republic. Such is the danger from sovereign power, limited or divided. The second disease of a commonwealth profieeds from the (2; poison of seditious doctrines, such as " that every private man is a judge of good and evil actions," which is only true in a state of nature where there are no civil laws, or under govern- ment only so far as relates to cases not determined by the law. IJut when the law has spoken, then the good and evil of actions is pointed out, the law itself is the sole measure of the good- ness or badness. From this false doctrine men are disposed to dispute the Tightness of laws, and- sometimes to disobey , them, to the distracting and weakening of the State. Closely akin to this is the doctrine that whatever a man does against his conscience is sin, which is only true in cases where the law has not spoken ; when it has, the law is the measure of the public conscience. Otherwise, as there are so many consciences, the laws might bo disobeyed ; so far as a8 ENGLISH POLITICAL PHILOSOPHY '<■> (K V they differed from anyone's conscience, the commonwealth would be distracted and torn. A third connected opinion is that faith and sanctity come not from reason and study, but from supernatural inspiration, from which is inferred that those thus favoured can judge of good and evil by such inspiration, to the dissolution of all civil government. These three last dangerous doctrines proceed from "un- learned divines," who interpret Scripture wrongly, and make men believe that "sanctity and natural reason cannot stand together." A fourth opinion repugnant to the nature of a common- wealth is the belief that the bearer of the sovereign power is subject to the civil laws. This is not so, argues Hobbes. The sovereign is only subject to the laws of nature. ** To the laws which he maketh or which have been already made he is not subject. . . . For to be subject to the laws is to be subject to the commonwealth, that is to the sovereign representative, that is to himself; which is not subjection, but freedom from the laws." If the monarch were subject to the laws, the judge who would then have power to punish him would be the sovereign; but then the judge, being subject to the laws, supposes a third sovereign to punish the second, and so to the height of absurdity, and the confusion and dissolution of the commonwealth. It is rather a logical absurdity that results here, than a real danger to the State. He might make himself subject, like the Kmperor Marcus Aurelius, who said, " though we be above the laws yet we choose to be bound by them," but he can hardly be legally subject to them, but only morally, by a self-imposed obligation, fri)m which yet he could free himself. It would only be a danger to the State if a faction in the State tried to make him subject to the law, as in Hampden's trial, in which it was aimed at showing that King Charles, in levying ship-money, had acted contrary to the law. The monarch cannot be supi)osed bound by the law without absurdity, because he is the judge, the administrator of the law, is the agent of himself, and no man can be sup[>osed to HOBBES 29 order nnd execute his own punishment, especially &n the right of pardon is lodged in him.^ (This has an important significance when the sovereign is not an individual. The sovereign in its collective capacity is not 6\il)jcc't to the civil law ; but could hardly violate it, could not collectively steal or murder or slander. lUit it coidd collec- tively murder a king, violate personal liberty, as in the time of George in., by general warrants, or in 1793 in France, rob and murder, and wrongfully imprison. Its meml)crs, whether few or many, cannot be punished for these collective acts ; they are arbitrary, tyrannical, but not punishable legally. But if individual members of the sovereign Iwdy, in their private capacity, break the law, they arc liable to the penalties.) '^^ A fifth destructive doctrine is that every man has an absolute propeity in his goods, such as excludes the right of the sovereign. Every man has such rights as exclude those of every other subject, but not of the sovereign. The sovereign lias the right to take sufficient to enable him to perform the ollice they have put him into, namely, to defend them against foreign enemies, and from the injuries of one another. If he be not allowed so much he cannot carry on his functions j and, consequently, there is no longer a commonwealth. (This only allows the sovereign to claim what is necessary for his office and for the public service, not to take as much as he pleases for his own extravagances or to enrich favourites, unless he can plead that it was for the public service to have such as faithful counsellors. There is a claim here evidently liable to abuse, however reasonable in the hands of good princes, and accordingly the House of Commons had early vindicated the principle that there should be no taxes without its consent. The result may lead indeed to divided sovereignty, and ulti- mately to civil war, as it did when the king tried to recover the taxing power.) ' The argument used elsewhere by Hobbes appears unsound : that he could not be bound by any law, since he could always abrogate it, because he might bo bound by the remaining ones ; and unless he abrogate all laws, to the "confusion and (lissolution of the commonwealth," he might be bound by those not abrogated. 30 ENGLISH POLITICAL PHILOSOPHY The sixth dangerous doctrine is ahready implied in what has been said, namely, that the sovereign power may be divided. To divide is to dissolve, *' for i)ower8 divided mutually destroy each other." And this doctrine proceeds, he tells us, chiefly from the legal profession. But the worst danger to a State comes not from doctrines, but from outside example. Thus the Low Countries had established a Republic, and they were flourishing. And generally when a commonwealth seems to prosper under a different form of government, there arises the desire of imitation, even from a desire of novelty — still more if the governed think the other form preferable. This is a disease comparable in a , State to " hot blood," and is frequently caused by the reading of the " books of policy, and histories of the ancient Greeks and Romans," whence the readers, if under a monarchy, derive the opinion that the subjects are all slaves, and in a popular government free men; but those living under a democracy "find no such matter." These books should be under the eyes of " discreet masters " ; and the disease is to be com- pared to "hydrophobia." Another disease is that whicli would set up a spiritual power in independence of the temporal, canons against laws. There would be two commonwealths really, with one and the same subjects, and here again a kingdom divided against itself ; a collision of two sovereigns, and every subject with two masters. With these two powers in opposition there may be danger of civil war and dissolution, because though the civil power stands in the clear light of natural reason, and is generally supported by a large part of the people, yet the other may draw a great part, esixjcially where the spiritual sanction is greater than other fears. And this disease resembles the "falling sickness," or epilepsy, because they who had it were supposed to be possessed with a spirit, that cast them into the fire or the water. So when many are troubled with this spirit, it either overwhelms the commonwealth with oppression, or casts it into the fire of a civil war. The spiritual may not merely be put in opposition to the civil government, but also in the latter there may be more than HOBBES 31 one poul ; there may be a division of powers with co-ordinate authority and without subordination to one sovereign authority, as wlien the power of levying money depends on an assembly, the power of conduct and command (the motive faculty) on one man, and the power of making laws (the rational faculty) on the " accidental consent not only of the first and second, but also of a third." This, which is England's case, is a danger to the commonwculth, sometimes for want of consent to good laws, but more often from want of necessary nourishment, i.e. of taxes. This is calledj* mixed monarchy^" The truth is, "it is not one independent commonwealth, but three independent factions, nor one representative person, but three. In the kingdom of God there may bo three persons independent with- out breach of unity in God that reigneth ; but where men reign that be subject to diversity of opinions, it cannot be so, and therefore, if the king bear the person of the people, and the general assembly bear also the person of the people, and another assembly bear the person of a part of the people, they are not one person or sovereign, but three persons and three sovereigns." There is no analogous disease in the natural body. But the case resembled a man that Hobbes had seen who had another growing out of his side, with a head, arms, breast, and stomach of his own, and if he had had another growing out of his other side, "the comparison might then have been exact." This is one of Hobbes' strong positions. A mixed monarchy with three bodies possessing separate co-ordinate powers, is a ^ weak government and implies a weak State. It existed when Hobbes wrote; we have surmounted it, but not till after a long struggle. And the wonder is that Hobbes did not see that his view could not prevail except through a struggle with Parliament. Besides, the House of Commons preferred a weakened government to the king's arbitrary power. Its members had certain powers and privileges legally allowed, * and they were not of a mind to surrender them. Rather they wished to effect a cure of the disease signalised, and which they probably knew existed, by reducing the king's power more and more. - And we know that the cure came finally, but not till after the Reform Bill of 1832, from the extension of ENGLISH POLITICAL PHILOSOPHY their authority, and the diminution of the king's prerogative, and the privileges of the House of Lords. The above are the diseases of the greatest present danger. There are others lesser. First, the urgent need for money at the beginning of a war, and the people's unwillingness to contribute, compelling the sovereign to have recourse to extreme measures, which is a disease like the " ague " ; again, too great wealth in one or a few through monopolies or farming of the public revenues, which resembles the " pleurisy accouipunied with in- flammation and painful stitches " ; the popularity of a subject, especially of a general, and that chiefly in a popular govern- ment (thus Julius Caesar made himself master of the Senate and people of Rome); again, the immoderate greatness of a town that could furnish and pay a great army of itself (like Paris, of London, or New York now, and something like London then) ; also the great number of corporations resembling *' lessor commonwealths in the bowels of a greater, like worms in the entrails of a natural man," which subsist on the common- wealth's strength and to its enfeeblement.^ Add to these the insatiable appetite of enlarging dominion, exposing us at fi-esh points to the enemy, " wens of ununited conquests, many times a burden, and with less danger lost than kept; also the 'lethargy' of ease, and 'consumption' of riot and vain expense." Lastly, final victory by the enemy in a foreign or civil war, 80 that the forces of the commonwealth no longer keep the field (for then is the commonwealth dissolved), and every man is at liberty to protect himself according to his own discretion. This is an important chapter worthy of the student's medita- tion, and even of the statesman's. It is only necessary to add to what has been already said by way of comment, that the chief weaknesses that he points out in our constitution had a historical origin, and that a later history has ett'ected the cure of a dividml sovereignty. History is the explanation of the spiritual pi»wer existing alongside the temporal, and of the canon beside the civil law. He refers indeeil to history, but seems not to have perceived the full significance of the reference. It explains why the feudal sovereignty was divided between the king and * See Maine, Early Jliit. of IiisiUutiom, p. 390, ou tbi» coni| arisou. HOBBES 33 the feiulai ])aron8, ftnd why again, after the barons' i)owcr was broken, and the Tudor monarchs became really monarchs, there arose again a struggle for supremacy between the King and Parliament, whose authority was increasing all through James i.'s reign, and still more through the reign of his son. The evils he points out of a divided sovereignty are really evils, but there is no cure for it, except that in the long-run the stronger and more influential force in society usually wins and becomes sovereign. Strength as it proved lay with the Parlia- ment; after 1688 with the nobility that controlled the Parlia- ment ; and after its reform in 1832 with the House of Commons, as largely representative of the groat middle class, that had been growing greater and greater during the last two centuries, and most rich and powerful in the present century. P»ut in another respect the sovereignty is still divided between the Cabinet, the House of Commons, and the electors.* Most of the other diseases of this chapter our government has passed through without gfeat hurt, even the poison of seditious doctrine, at the French Revolution. We now live under a "limited monarchy," but only in name. All the sovereign attributes have passed to the Parliament and especi- ally the House of Commons, because the nominal monarch has long ceased to veto its measures, and the peers finally yield to its will. The Parliament has dropped the one dangerous attribute. It does not pretend to govern religious doctrine, but allows full religious toleration; nor to control l>olitical utterance, but allows widest freedom of speech and . writing. The State .has passed all its dangers and diseases without dissolution*, though, . since Hobbes wrote, many party governments in England have been destroyed. Even the " wen of ununited conquests " seems to agree with us ; as since Hobbes* time we have become masters of one-fifth of the globe, with advantage both to ourselves and the subject races that we rule with their full consent and approval. The danger from the " example " of other forms of govern- ment we have passed by. We no longer believe that the government of the United States is better than our own, or ' Sefi infra, p. 206. 3 34 ENGLISH POLITICAL PHILOSOPHY that there is magic charm in a Republic. There are some amongst us indeed who think that a titled aristocracy has too much power with us ; but everyone can see that an aristocracy must exist of some sort in a Republic as well as under every •other government. §6 The remaining |x>rtion of the book is chiefly concerned with what we would now describe ajt.tha functions^ of~Uie There is a most remarkable chapter (xxx.), original and suggestive, "On the Office of the Sovereign Representative," or, as in our days we should rather say, on the functions of the State or of the Government. It is clear, vigorous, as all his writings are, and with a remarkably modern air about it. The office of the sovereign is to bo determined by the end for which government was created, namely, the "safety of the people," and by "safety" Hobbes meant not "bare preserva- tion," but also " all other contentments of life, which every man by lawful industry, without danger or liurt to the common- wealth, shall acquire to himself." The phrase is quite as detinitc as Bentham's greatest happiness of the greatest number. But how are all "contentments of life" to be a^^urodH Not by care applied to individuals any further tluiii I) protection from injuries (that is, protection of property untl peiHiui), but by a general providence contained in public instruction Iwth of doctrine and example, and in the making and executing of good laws. Now, here is a remarkable sentence on the sphere of govern- ment, whether monarchy or democrary, and, as will presently appear, after two hundred and lifty years we have not yet realised it. We only began some sixty years ago to aim at it, though now we describe the functions of the State as some- what wider. But let us proceed to see how he unfolds his general statement. 1 The first duty of the sovereign is to maintain all those essential rights or sovereign attributes described before. The HOBBES 35 Rovcrolgn, whether one man or assembly, must maintain tliem all intact, because otherwise the commonwealth is in danger of dissolntion, and the war of all with all, ** the greatest evil that "^ can happen in this life." Secondly, it is the duty pf the sovc- p reign one or assembly, let us say, of the government, io inf^fruct the 2)cop!e in the groniuh and reasons of those essential rights ; because if it lets them remain in ignorance they are easily seduced ond drawn to resist it, when the State requires the use and exercise of the rights. It is the more necessary to have the grounds and reasons of the sovereign's rights careftdly taught, because the terror of the civil law forbidding rebellion, or the questioning those rights which is of the nature of rebellion, would bo insufficient Such civil law would have no force, but as it is founded on the law | of nature, which f(trbids the violation of faith. It is on this obligation not to violate plighted promises that our allegiance and duty of obedience rests, if men throw over that, neither will they be frightened by the terror of the civil law when they think they have strength on their side, so that our obligation not to rebel turns on our good faith. (I>ut when did the sub- jects promise to obey, specially when there was a divided and disputed sovereignty as a fact in 1642 X) But, says HobV)es, if these principles were acknowledged as the rights of sovereigns, and were exercised by them, " the constitution would, except it were destroyed by violence, be everlasting." These principles are only -to be discovered by "industrious meditation," such are they that he has given. lie thinks them principles of reason, but if not they are fiu|ely principles deducible from the authority of Scripture. But the common people have not capacity sufficient to under- stand them, it may bo objected. Hobbcs thinks them as capable as the rich and jjotent subjects, or even those the most learned ; because the " jwtent men hardly digest any doctrine that sets up a power to bridle their affections, nor the learned anything that shows their own errors, and thereby lessens their authority." These superior classes from interest will not choose to understand ^nd believe; but the common people's minds, ' unless they happen to be' dependent on the rich and potent, are : 36 ENGLISH POLITICAL PHILOSOPHY like ** clean paper/' ready to receive whatever impressions the public power may choose to print on them. They " acquiesce " in the mysteries of the Christian faitli which are above reason ; millions believe the same body may be in many places at the same time, which is contrary to reason. Can wo suppose they could not comprehend what is so conversant to reason that any unprejudiced man " needs no more to leuru it than to hear it, if it were taught by competent persons under protection of law"? He concludes there is no difficulty in instructing the people in ixjlitical science, so far ns the inculcation of the essential rights of sovereignty are concerned, no difficulty but what proceeds from the sovereign's fault or that of his ministers. It is therefore his duty to ensure the popular instruction, and not merely his duty but his benefit, and his security against the danger to his natural person that may result from rebellion (as in tlie case of Charles i.). To descend to particulars, Hobbes gives us a revised version of the Ten Commandments : the people are to be taught that they ought not to be in love with any form of government in neighbouring nations more than with their own, nor what prosperity they see in nations otherwise governed are they to 'V desire change ; and the reason is that the prosperity comes, not from the form of government, but from the fact of obedience to the sovereign — whether monarchy, democracy, or aristocracy (though he thinks the former the best for those lucky enougli to have it). Take away the obedience, you take away the con- cord. "The State shall not only not flourish, but in a short time it will be dissolved. They who through disobedience attempt merely to reform the commonwealth, shall find they do thereby destroy it" (as did the Long Parliament of Charles i., which he probably had in his mind). He here uses a remark- able illustration, afterwards employed by Burke, who appears to have well ix>ndered this first commandment in his almast religious reverence for the constitution of his time. These reformers act " like the foolish daughters of l*eleu8, which, desiring to renew the youth of their decrepid father by the HOBBES 37 counsel of Medea, did cut him in pieces and boil him together with strange herbs, but made not of him a new man." This love, tlierefore, of other governments, or desire of change in one's own, is like the breach of the first commandment: •'Thou shalt have no other gods before Me." Secondly, they must not so admire the virtues of any subject, v/ no matter how high-placed he stand or however shining his capacities, so far as to render him homage or obedience only proper to the sovereign whose representative ho is; nor of any assembly cxce]>t the sovereign assembly. The sovereign should be jealous of the love of his people, and averse to have it inter- cepted by iMtpular individuals through flattery, as it has often been. Such open homage to distinguished and i>opular men is like the violation of the second commandment ; the taking of any favoured rcpresentitive image in preference to the more secluded but jealous Deity. . Thirdly, they must be taught that it is a fault to sjieak evil v of the sovereign, whether one man or assembly, or to dispute alwut his power, or use his name irreverently, lest his name Ik? brought into contempt, and their obedience thereby relaxed. " Which doctrine the third commandment by resemblance jwinteth to." Fourthly, a time must be set apart, the most proper being-/ the Sabbath day (after i>rayer and praise to the Sovereign of sovereigns), for instruction in these their duties, to hear them told to them, as also such positive laws as concern them all read and expounded. The king, in fact, is the image of God on earth ; and as the first four commandments on the first tjiblo of the Mosaic law had inscribed on them the Jews* duty to God, with enumeration of His absolute power, not only as God, but also as King of the Jewish people by pact, so the first four commandments to lie taught the people by their sovereign is by analogy siiggeated to them as above. Such arc our political duties, or duties to the sovereign. Then the grounds of our civil duties are in like manner to bo explained to the people, which correspond to our duties to our neighlwur, as contoincd in the second table of the Mosaic law. 38 ENGLISH POLltlCAL PHILOSOPHY These are, first, the duties of children to their parents, namely, obedience during early years, and afterwards by external signs of honour, out of gratitude for their care and education; and this agrees with the fifth commandment. Then the sovereign ought to cause the principles of justice to be taught Justice consists in taking from no mim wliat is his, which implies that we should not deprive our neighbour by violence or fraud of anything which by the sovereign authority is theirs. Property is of three things : first, of life and limb ; second, of husband and wife in the marital relation ; thirdly, of riches and the means of living. They are therefore to be tixught the wrong of private revenges ; of violation of conjugal honour, and of robbery and theft of another's goods. Also they should be shown the evil result of false judgment, either of witness or judge, by which justice is destroyed or made of no crtect ; and these correspond to the sixth, seventh, eighth, and ninth commandments. " Lastly, ,they are to be taught that not only unjust facts, but the designs and intentions to du them, though by accident hindered, arc injustice. . . . And this is the intention of the tenth commandment." He then raises a question as to the " means and conduits " by which the people may receive this political instruction, and he comes to the conclusion "that tlio instruction of the people dependeth wholly on the right teaching of youth in the uni- versities." His argument is that the great mass of men, com- posed of those who must labour, either from necessity or desire to make weiilth, or those who follow sensual pleasures from sloth or HUperlluity, cannot bestow the " deep meditation " which the learning of truth in the political sciences, as in all sciences, requires. These classes now get such instruction as they have from the clergy, or such of their friends as seem wiser than themselves in cases uf law and cunscience, thn)Ugh a faculty of fiuent and plausible speecth. Now these last, antl the divines, have acquired their knowledge tiither at the universities or from schools of law (Inns of Court), or from books written by men eminent in the universities and schools. So that the univer- sities are the ultimate fountains ; and if the instruction is to be better hereafter, the fimntain must l)e purer. Doctrines sub- HOBBES 39 versivc of sovereign rights, he contends, have been maintained both by preachers and lawyers educated there, which proves that, though the universities were not the authors of tlie false doctrines, " they knew not how to plant the true." §7 Thus far as to the duties of the sovereign as teacher of his subjects' duties. lUit next, the safety and good of the people requires equal administration of justice to the rich and mighty, as well as to the poor and obscure. In this consists equity, to which, by the law of nature, the sovereign is subject as well as the meanest, so that he cannot pardon olFences against private persons, though he may pardon offences against himself, that is, against the State. It would, he thinks, bo a great mistake, as well as wrong, to show partiality to the great, whose oppressions and injuries are so much worse than others, as they have least need to commit them, and the consequences may be terrible : " For impunity makes insolence ; insolence hatred ; and hatred an endeavour to pull down all oppressing and contumelious greatness though with tlic ruin of the commonwealth"; a sentence that all nobles and great people ought to ponder, suggested probably to Hobbes by the levellitig tendency of the time in which he was writing, and which received an extraordinary and memorable exempliti- cation more than a hundred years later in France. And here, no doubt, we have one of the causes of the hatred of the multitude to the aristocracy manifested during the French Revolution. It was a case, not merely of the "oppressors' wrong," but of the *' proud man's contumely," resulting from partiality and impunity in their being shielded from justice. Under the head of Equal Justice before the Law comei* equality in taxation, which deiMjnds on the equality of the debt that each one owes to the State for his defence. Without govern- ment, men would have to defend themselves and their projierty ; not merely to labour, but, if necessary, to fight in defence of the results of labour, or else hire others to fight for them. Taxes imposetl by the sovereign arc only the " wages due to tliosc 40 ENGLISH POLITICAL PHILOSOPHY that hold the public sword to defend private citizens in the exercise of their private trades and callings." The benefit received, protection of life and property, being equally great for rich and poor, they would seem to owe equal taxes on that score ; but then the rich who use the service of the poor should pay taxes for them as well as themselves. Equality of taxes, he thinks, consists in laying taxes on the things men consume, on expenditure rather than on property or income, so as to check luxurious waste, because man pay equally so far as they consume (on which difficult point, though good, he is somewhat brief. A tax on commodities of general consumi)tion is no doubt somewhat equal, though by it the poor pay more of their means than the rich, ami so it would be une(iual). It is the moral duty of the sovereign to provide for the support of the destitute poor, because, owing to the chances of life, many men by "accident inevittible become imable to maintjiin themselves by their labour," and they ought not to be left to the " uncertain charity " of private individuals, though, in the absence of public relief, the i>oor have a moral claim on men in general as charitable beings. This doe^s not apply to the able-bodied. "They are to be forced to work ; * and to avoid the excuse of not finding eui- ployment there ought to be such laws as may encourage all manner of arts, as navigation, agriculture, fishing, and all manu- facture that requires labour." Presumably they are to ])o set to Work at these under State direction and discipline, and thus we see Hobbes is so far what would now be called a State socialist. Tlio f)bjc('tion to this course, though it wouM be far less strong in llobbos' day than now, is that thestj industries could not be starteil without capital contributed by taxes levied on other citizens, and then the surphis products would be in com- l)etition with those of the same industries self-supported, to the injury of the latter, while in addition the labour would, without severe discipline, probably be inefficient. It would not be self-supporting ; and more taxation would bt; necessary if i)opulation increaseil, as it would, unless the State took the regulation of the matter in hand. ' Ah ill Carlylu's »chciuu in Win LtUkr Day Pamjthlcl». HOBBES 4! But oven thcnHobbcR has a remedy short of such regulation, phort of the dangerous kind of socialism, not requiring in- definite taxation. This is a compulsory State emigration. In that case, he says, " they are to he transplanted to the colonies, into countries not sufficiently inhabited, where, never- theless, they are not to exterminate those they find there ; but constrain them to inhabit closer together, anpular. It is thought that ho began in 1651, alter Worcester, to meditate tho dissolving of the Parliament, which he carried out in 1653. 44 I ENGLISH POLITICAL PHILOSOPHY stitution to determine the powers and privileges of the sovereign; for though sovereignty is one, and the powers implied in it are one and deducible from the end, yet they may, as a fact, be partitioned between King and Parliament; and this was the case during most of the seventeenth century. It is something sophistical to deduce the whole group of sovereign attributes from a social contract, when the real question at issue was. How were they really divided in an existing constitution t But setting aside this doubtful part of the work, his teach- ing as to the essential nature and extent of sovereignty, whether lodged (all of it he means) in one or a few, or the majority of the [)eople, is for the most part as sound as it is acute and original. In fact, Hobbes' theory of sovereignty is essentially the parent of ]>entham*8, and especially of Austin's, in his Province of Jurisjirwience Determined^ only that the latter did not see that it was necessary to explain the hiistorical origin of a thing so remarkable as government, the rule of one or a part over the rest, and also the origin of law. They both jwstulato the existence of government, yet surely it requires to be accounted for, instead of being assumed and merely analysed as to what it implies. The latter process gives in- formation indeed, but not sufficient. Hobbes saw the need of accounting for the fact of government, and he gives what he considers the only origins. It now appears from the historical school that there was another origin, which did not escape the IKjnetration of Hobbes, only that the state of history in his time did not enable him to follow this line of inquiry.* The origin of sovereignty neither Austin nor llcntham inquires into. Uut that law is the command of the sovereign, both are agreed with Hobbes; that sovereignty itsi'If is one and the same, whether in the hands of one, a few, or the majority. That the sovereign is not subject to civil or constitutional law is the teaching of Austin, following Hobbes. '~' On this part of his theory Hobbes, as said, was largely right ; he was only wrong in implying that the king of Kngland was, when ho wrote, in the position of a sovereign, in the sense of iMjing unchecked by the civil law or constitution, though ' Suu lii.s i*uniurkal)lc cliup. xx. of Dominion, Vatttnal and Desjn>lic(il. HOBBES 45 he erred with u great party of whoso opinions he became the philoso]>]iic mouthpiece. In his account of the functions of the government, as distinct from its necessary powers, he is good and open to little objection. He certainly does not advocate a Laissvz /aire or non-interference policy, but rather Y that of the paternal government, the instructor and protector of the people. His account of the different kinds of govern- ment, of their merits and drawbacks, is marked by his usual acutene^s, knowing, as he cloes, very well that there are evils incident to all of them, while of the " diseases" and "causes of dissolutions " of government, he was the first in modern times, before ^Fontesquieu, or Rousseau, or Burke, to say anything of value. The latter is a subject of great and growing im- portance from the increased influence of the democratic prin- ciple in government, and the words of Hobbes, especially where he hits upon the peculiar weakness of parliamentary or popular government, arc much to the point. In fact, he anticipates Carlyle's attack on parliamentary government and oratory, while more clearly than in Mill's Representative Government or Maine*8 Popular Government we are shown the inherent and ineradi- cable weakness of government by a large assembly.^ This part of his work is good, but his contribution to the Philosophy of I^w is almost equally remarkable and original. In fact, if we take his pregnant chapters on civil laws, on crimes, their excuses and extenuations; and on punishments and rewards ; together with his emphatic assertions of the need of reasons in favour of the laws being made known to the people, and that in the fewest and. clearest words, we have the essence of Bentham's long labours both as regards law reform and the creation of a science of law in great measure indicated. Equally with Bentham and Austin, but long before them, he analysed the chief notions implied in law — sovereignty, command, act, will, intention, freedom, etc. ; so that he is the this founder of the Analytical Method in jurisprudence, and . merits equally with them the name of analytical jurist I think that even a good case might further be ipade in * See also on this point Taine'a La Itevoluiionf vol. I. 46 ENGLISH POLITICAL PHILOSOPHY favour of hU boiiig thu founder of sociology, bo fivr ur suoh a soieuoe really exintH at all. For wo have the recognition of the fact that a society is an organism comparable to the human organism, togetlier with many suggCHtive and ingenious arguments drawn from that fruitful analogy. We have the distinction of the nutritive, distributive, and regulative syHtoiuH of the body applied to States j * its prooruution ascribLul either to contract or force ; its various diHeases and infirmities com- pared to those of the human body, and its dissolution to the dissolution of the government by foreign or civil war. To this view, indeed, Herbert Spencer objects that societies ! are to be compared to organisms indeed, but not specially to the human organism, nor will he grant that what corrcHponds to the brain is the governing agencies ; the brain, he thinks, being rather diffused throughout the body as in certain simpler and lower types of life. But surely something may be urged in favour of llobbes* view. Lower living organiHUis, it may be said, correspond to lower social types and groups ; but might not the highest typi*H, hucIi as (nvilimMl Noci(>ti('H, be fairly compared to the hunum organism as the highest, and the government in the State and the Church to the brain, both because the best intellect of the country is usually to be found in them — able statesmen, judges, administnitors, bishops, esi)e- cially where means are taken to attract by high emoluinents ilblo meni No doubt, llobbes' anaU>gy is not the whole but only partial truth; unless the absolutely best ability of the country was in the government, spiritual ami temporal. There ^ usually nmch ability outside the government, and applied to science, literature, philosophy, invention, and even to the direction of industry. Still, from Hobbes' jtoint of view, the ^fnv«r jnnent of the SjutaJa-JJiiit^most vital woi'k-i)f alK and he takes those who direct this to be^ie reafand chief brain of the nation's life, because they do the most essential work, and Ixicause the State as a whole is moved by the government as the man by his brain. But, aiMirt from this point, we have also Herbert Spencer's ghost theory of the origin of religion anticipated in Hobbes j * Chap. xxiv. HOBBES 47 niso the origin of polytheism fiketched, the natural origin of speech as a liunian invention ; the origin of the difrerent Rciences so far as known in his day ; the fundamental depend- ence of all in mathematics, though ho presses this point unduly ; — all capit<\l facts in the science as conceived by Comte and Spencer. He also gives us, as already stated, a thcory_of jurispriidfijjce based on natural law and on ariaTysTs ; something of a theory of pcoTunmcs, thbiigh very imperfect; an able theory of ethics and the best theory of politics, that is to say all the more solid parts of the statical side of sociology, though from the imperfect state of history and the imperfect development of physics and chemistry he has been unable to employ the historical method, and relies chiefly on deduction and analysis. IJut who amongst later Englishmen lias achieved greater and more fruitful results than he has done, even with his limited resources ? With his discoveries in psychology and moral science, im- portjint as they are, and with his rationalising interpretations of the Scriptures, bold as they are, wo arc less concerned. The whole is a work eminently calculated, as Austin says, to stimulate the mind of the reader to think ; clear in thought, exact in words, sometimes vivid, and with not infrequently a felicity of illustrating his severe matter worthy of Bacon himself. In fact, if we strike out his historical error as to the origin of governments, and again his error that they should govern doctrines, and correct his picture of man as by nature a selfish and an unsociable animal, which affects some but by no means all of his ethics, there remains a great book of a great creative intellect in a great century ; on the whole, the greatest and most original, as it was the first, work in political and moral science in our literature. § 10 The book appeared just when the great ten years* civil war was finished by the triumph of the Parliament; and the ideas in it not improbably encouraged Cromwell to seize the helm of government, face to face as England was with 48 ENGLISH POLITICAL PHILOSOPHY anarchy: the nation heing tilled with all the *' diseases" pointed out in IIo))bes' book; with levellers, fifth-monarchy men, and Anabaptists in the army, favoured by leading officers, with all kinds of new s^ts in religion, all kinds of public and private delirium in the air, as usually happens in the course of great revolutions. We know that Cromwell, after Worcester (1651), summoned leading men to sound their views as to " a settlement of the kingdom " and the future form of the government ; that some declared for a monarchy under one of the exiled family ; that Harrison declared for a Republic, and that Cromwell finally declared that a "settlement with something of monarchy in it would be very fit." And some time after 1652 he asked Whitelock, " what if a man were to take on him to be kingi" which shows the idea was in his mind long before he dissolved the Parliament. The situiition was critical in the extreme. The Rump Parliament, the only legal authority, and only half legal since the expulsion of half the original members, had gradually become unpopular. The alternatives were the continuance of this discredited Parliament, a new one, or a Convention to determuie the form of government, Cromwell himself as dictator, or anarchy. Rut after a success- ful civil war it would have been risky to appeal to the suffrage lest the work of the sword might be undone by the return of loyalists, who very likely were still in a majority. It was a case, if ever there was one, for force to make good what force had done so far. It was not even a case fur a new social contract, for though the majority of the English people after Worcester fight might have given their jwwers into Cromwell's hands owing to his marvellous career, still it was doubtful. Some settled government and peace was necessary after the terrible ten years' war. The Parliament was dissolved by force, and the public ac(piiesced. As Hallam says,* " Cromwell's assumption of the title of Protector was a necessary and whole- some usurimtion, however he may have caused the necessity ; it secured the nation from the mischievous lunacy of the Ana- baptists, and from the more cold-blooded tyranny of that little * ConslUutional Jfistury, cliaji. x. ; sec also Carlyle's LdU'V9(iiid Sjiccchct o/ Cromwcli. HOBBES 49 oligarchy wliich arrogated to itself the name of the Common- wealth men." Practically, afti^r the experiment of the Little Parliamentk Cromwell was absolute, and exercised all Ilobbea' attributes aej sovcrei|,Mi, except tlio fatal one that had cost Charles i. 86 dear, lie let religion alone; tolerated even tlie Jews and all sects that did not disturb the public tranquillity. Ho ruled well ; even reformed the laws on the lines indicated by Hobbes; and would have gone further but for prudential reasons and the fear of professional opposition. After hifl death, in 1658, there was two years* partial anarchy, till at length every experhnent having been tried and found im- ix)8sible, the exiled line was recalled in the person of Charles ii. Now came the time for Hobbism, full and complete, for nearly thirty years, until, in fact, James ii. reiwated his father's folly and attempted to force the religious conscience of the Presbyterians in Scotland, and to subvert the established religion in England, when once again the subjects arose. Dissenters and Churchmen joined hands. The people, the middle class and the nobles in large part, combined, and the Parliament deprived him of his throne, which, after his flight, it een largely identified with the principles of the exiled family, slowly lost credit, and the principles of Locke and a divided povereignty prevailed, in name at least, though In reality nearly all the sovereign attributes ^wssed over to the real governing power — the great Whig families. The govern- ment of England became really an oligarchy under the name of a limited monarchy. \y L-^i LOCKE I. ON CIVIL GOVERNMENT §1 THi/greateat name in English philosophy is undouhtedly that o£ax)cke. But in political philosophy, in point of originality e is much inferior to Hobbes, though his influence has been almost equally great. His great book, the Essay on the Human Understanding^ deals mainly with psychology and metaphysics, incidentally with logic, the physical sciences, and the moral ^«fid {iolitical sciences. Moral (under which he includes IH)litical) si)cculation, he thinks might be made a science if men would " got and fix clear ideas and apply steadily to them same name in the same determinate sense." Secondly, he politics may be made a demonstrative, by which he means a deductive science, if we could get certain universal iropa8itiQn8jroni_\vhich^ jceaaon, which is essentially the view of John 8. Mill as given in his book on Logic, and as exempli- fied in his exposition of political economy. I^ocke in the Essay presents us with two such general propositions — one that " no government allows absolute liberty," and the second, "where tliere is no property there is no injustice." It may be bubted if these propositions would carry us far, but they serve to show his conception of morals and ix)litics ami the proper method of developing them. In the Essay also he has a long dissertation on the nature of virtue and vice, good and evil, in which he traces our moral ideas largely to education, denying that we have any innate ideas or inherited moral {irinciplcs. Moreover, he lays down in this connection that there are three kinds of laws by which men try their actions, with three several '^ LOCKE 51 sanctions (the divine law, the civil law, and the law of opinion); a distinction afterwards adopted by ]>entham (who added a fourth law and sanction) and by Austin in his Jurii^pnulpnce, the first live chapters of which are little more than a de- velopment of the distinction. r»ut, as stated, the Inxly of the work is psychological and niet{ii)hysical. The problem he sets before himself is to ascer- tain the origin, extent, and limits of our knowledge, together with the grounds and degrees of faith and opinion. It is in a different work, his Two Treatises on Civil Government^ that we have his theory of the origin, nature, and limits of government, together with his refutation of the patriarchal theory of its origin, as derived by Sir Robert Filmer from the r»ook of ("tcnesis. Having refuted this theory, as he supposes, aijd so cleared the ground of all except Hobbes' theory, he gives us his own view, the foundation of which is expressly drawn from looker's EccleHastical Polity^ with scarce any trace of Hobbes. Still he agrees with Hobbes in two points — first, that men ( riginally lived in the state of nature and without any civil ;ovcrnment; and secondly, that they emerged from this state ja ^ a social, contract or compact. The men, however, the state in which they lived, and the kind of contract which terminated it, are alldi fferently conceived by I^ cke. Man was not, as Hobbes asserted, an unsociable being like most of the animal species. Far from finding no pleasure but only "grief in the company of his fellows," he had within him the principle of sociability that attracted him to his fellows and that made him feel incom])lete and dissatisfied when long alone. This instinct was implanted by God Himself for a gre^t purjwse that could only be realised through it; to make possible society with all the advantages which distinguish it froni the low and semi- brutal state of the wandering savages. The primitive man found the society of his fellows agreeable in itself, and further advantageous in many ways. He was pre-fitted for this by the hand of God ; it was not a happy accident (as our present evolutionists hold). Nor was he so very quarrelsome, on the other hand, as Hobbes supposes j for, in the first place, liis sociability tends to prevent quarrels, and, secondly, the abund- $2 ENGLISH POLITICAL PHILOSOPHY ance of land and *' tho plenty of natural provisions thoro was a long time in the world" left "little room for quarrels or contentions about property." Moreover, in the state of nature they recognised in their customs rights of property (as we see in contemporary savage tribes) in cattle and other domestic animals, land that anyone had reclaimed, and commodities, the result of an individual's own labour. The result was that until money was invented as a means of exchange there was very considerable equality uf social condition. Land was of no use beyond a certain amount, an extra food supply was of little use because it was perinhable ; but money could be accAimulated, and it commanded all other things. It was money that introduced mequality.^ Thus, then, linally, their natural sociability pre- vented many quarrels, their customs and usages ruled their lives in place of laws, so that they may have lived in tho condition of nature for a long time, just as the tribes of North American Indians continued to live in it (and could not really live in any other condition). And here we have a different portrait of primitive man from that drawn by Hobbes, and a very ditlerent description of his condition ; it is, in fact, a much truer picture of the man and his environment. It accords better with the results of the Historical and Comparative Method of inquiry as given to us by Sir Henry Maine, Herbert Spencer, and others. It agrees more with the accounts of travellers who have studied the habits and customs of existing savage tribes living without any government, some- times without even chiefs. In these cases tho individuals, as a rule, live without much (luarrelling, though tribe and tribe may make war on each other, just as nation and nation may do. Custom rules, and very effectively, in place of laws made by a sovereign and enforced by tribunals. Private proiierty is recog- nised in certain things but not in others. And the like holds of the primitive man so far as the light of the historicid research has fallen upon him in his early stages. Again, the equality asserted of man in the state of nature by * Rou38eau, on tlic contrary, says, not gold but agriculture and the plough was the great cause of inequality, because they led to iiroi»erty in Iftud. LOCKE 53 L()cke is much nearer to the truth. I^y equality he tells ur ho (loos not mean all sorts of equality ; for men are not equal in virtue or mental ability. The equality he speaks of is the " equal right that every man hath to his natural freedom with- out h«Mng,_5iil^iecte(l to the will or authority of nny other man."* pain, as to lil)erty or freedom, the word on all men's lips, arid so liahle to abuse. liy liberty he moans the liberty of men to disjM»se as they please of their goods and persons and to order their actions "within the allowance of those laws uhder which they are ; therein not to be subject to the arbitrary will of another, but freely follow their own." And this kind of liberty or freedom is, or should be, increased and not diminisheersonally received from God or else by authority derived at lirst from their consent upon whose person they impose laws, it is no other than mere tyranny. Laws they are not, therefore, which public ai)probation hath not made so."^ But though the Legislature is the supreme jxiwer, it is not absolute nor can possibly have absolute and arbitrary i)ower over the lives and fortunes of the people. This is a most vital point. y^Qi us see Locke's proof of it. A man can give up to the ' public authority, constituted by him and his fellows, no more power than he had in the state of nature, and in it he had no arbitrary power over the lives, liberties, or possessions of others ; no power but what customs and the law of nature gave to all, and that was limited. Nor had he even an arbitrary power over his own life, to Uike it away if ho pleased, " but only so much power as the law of nature gave him for the preservation uf hims(>lf and the rest of mankind." ^'he amount of powc^r that can bo exercised by the legis- lature is limited to what is for the pulilic good. The end of its exercise is the preservation of the property, lives, and liberties of the subjects. The laws made in civil society should be modelled on the law of nature that existed before society, and whose obligations do not arise in society. For the law of nature is really the Will of God. But, secondly, the legislative power must not rule by "arbitrary extemporary decrees," but by promulgated standing laws and by known and authorised ^.-^udges. Because, he repeats again and again, men united at I lirst mainly for the protection of their properties, and they Y nnist therefore have lixeil, known rules respecting property. If arliitrary, discretionary, and extemiM)rary power is once conceded in the making of laws respecting ])roi)erty, etc., the > BcdcMa>t(ical roiity^ bk, i. § 4, LOCKE 57 pooplo linvc (lisnrmod thoniRelvps and nnnod the logislator to iimkc a prey of thom wlicn lie pleases ; and this is a worse state than the state of nature, because to be subject to the arbitrary will anpo8e that the legislative power can dispose of the subject's pniperty arbitrarily or take any part of it at pleasure by way of tijxation. There is not much danger of this, ho thinks, where asspmblies (like the then House of Commons) are composed of variable members which melt after a time into the mass of the people ; but only when the legislative power lies in an indis- soluble and consequently irresponsible assembly, or in the hantls of a despot. Good laws of property are only a pro^ \ tection against fellow-subjects of evil inclinations, against bad / fellow-sheep, but not against the shepherd, who may chance / to turn wolf and devour their substance (and perhaps the slieep themselves). Therefore all taxes must bo by the consent of the people, that is, of the majority of them ; and this consent mij^ be given either by themselves or else by their chosen repre- sentatives, otherwise the fundamental law of property is violatcart with it to representiitives, owing to the dilUculties or imixissibilities in the way of the direct exercise of it in a populous country. liut they can suHiciently impress their wishes on their representatives without its being necessjiry to treat them as mere delegates. The three previous i)ositions, as to the limits of the legislative power in making laws, in levying tiixes, and the necessity of the taxes being consented to by the people's representatives, are even more important. For they state true doctrine in the main, the oi)p0Hite of Hobbes and of the hchool of lientham and Austin, who found their theory of sovereignty on Hobbes. It follows on Locke's principles that an absolute monarchy (and an absolute oligarchy) is not only a bad government but is not a legitimate government at all. As between monarch » Cliai». X. § 132. V LOCKE 59 and Hubjcfit tliere still pxints the state of imturp, 1)ccnit8e the monarch is uiuler no legal obligation to his snlyccts, whilst they are all under legal obligations to him. And in such a case, where there is no common judge to appeal to, the state of nature s() far exists, should any difference arise between king and people. Suppose, for example, they are oppressed and plundered by the sovereign one, or their conscience in matter of religion coerced, they are apt to regard themselves as in the state of nature with respect to him, and if he pushes hia tyranny far, U^ resist by force. Kxistenco under an arbitrary [ despot is really worse than in the state of nature, where one might hope to defend his lifej liberty, ano8ecl mainly of labourers for the taxation of the rich. Whatever taxes are imposed should press, as nearly as possible, equally on all, though, of course, such equality of burden might retjuire from the rich a larger proportion of their means, but not an arbitrarily assessed proportion to be subject to arbitrary increase. Locke, one of the greatest and fairest of Englishmen, is against this, as is his philosophical successor, J. 8. Mill, wh«) contends for ecpiality of taxation. And the further reason is that arbitrary taxation would be unjust, and tinally, if long pursued, would be disastrous to all, and especially the working classes, for whose benetit it is by supposition meant. Justice, the general weal, and most of all the weal of the working classes, forbid it. §3 Much of Locke's political iloctrine is sound, much of it has borne fruit. There is, however, a fta-midablt! objeetitm to it, the same as to Hobbes' views. There was no primitive social contract, liut U* this Locke l)oldly replies by oH'ering examples from history. That men once universally lived in a state of nature he thinks a fair and likely hypt>thesis, from the fa(;t that tribes of men in North America and elsewhere were ^.ftutuully living in the state of nature. It is also reasonable to assume considerable e(piality amongst aboriginal men, because such equality actually existed amongst men in the state of nature when he Wiis writing. And once grant sm^h equal human units to have existed, the hypothesis of a social contract such as Locke describes is the simplest and most natural way from the state of nature to a civil society, siqiposing them to have fouml the former very inconvenient, as Lo(!ke shows (tlearly it must j have been, and that they wished to escape from the incon- / veniences. As Hooker, the first in modern times to lay down the doctrine of a social contract, says, there was " so way but by agreement amongst themselves, and except they gave thcii* -^ m uJ LOCKE common consent all to be ordered by Komo whom they Hhoula ftgroe niK)n, without which consent there would be no reason that one man Hhould take upon liim to be lord or judge over another," because all are by siipposition equal. — — I Tliis is sound reasoning if we grant the hyiK)thetical ( assumptions of is<»lated and equal units desirous of forming a society and Inws and government. All else would follow as Ix>cke has laid ilown. Jhit in faet, and in spite of I^cke's lal)oured examples, there is not a single authenticated case in history, before his time, of such a contract having been made, or of a government having been created by the people meeting and agreeing one with anotlier to hand over their i>owers to one man or one assembly. Something like it, indeed, occurrl5(1 a/fer Locke's time, wlien the French people in Paris (with imitations over France) nu!t in the Champ de Mars, 1791, and swore lidtility to the new constitution (or social contract), while the king and the assembly in like manner did the same. Hero W51S something like a social contract, something like an agree- ment of all to hand over their inherent powers to the govern- ment as defined in the constitution, together with mutual promises of governors and governed, the former to govern accortling to the constitution, the latter to olxjy the laws ; while in the constitution were laid down Locke's fundamental laws guaranteeing property, and providing for changes by an appeal to tln^ p»M>ple. Here wsis a social contract, but it was a new and modern thing, which probably wcmld never have existed but for Txx'.ke's book, which had been carefully reaatriarchs of the Old Testament, Abraham, or Lot, the })resent chief of an Arab tribe, or a Highland chief of two hundred years ago. This chief may in time, with further expansion of the group or clan and possibly by war with a neighbouring chief, become something like a small king. One clan may conquer another, and so kingship may arise, whose authority may descend by primogeniture or more likely by election of the ** worthiest" of the chief's near kinsmen. wer over the lives of all and is the administrator of the common property, he may issue irresponsible single commands, but these arc not properly laws, LOCKE 63 tliongh they may be tlie germs of later laws, or decrees of a (lesix)tic mniinroli (»r sovoroipn Lpfrislatiirc. AVhat correspond ^ to laws are c ustom s. In the ch ief wehave what api)ears to be the first o rigin of government by on e. In early times, tO(J, we find in (Iroero assemblies ruling in the (pities. Iioth kinds of governments have a long subsequent history. In each modem nation tin* history of government has been a difl'erent one, though all th(^ (lerman tribes began with barbarians tolerably equal, who gradually elected the bravest for their chiefs. This is the new way of treating the question of the origin and development of governments and of law, the historical method, which is now preferred to the hypothetical and abstract method of Hobbes, Locke, and Rousseau, whicli starts from the state of nature and reasons from the law of nature as nding the lives of the units.^ Ihit if we admit the i>ossible beginnings of civil government (and of laws) in the way of a social contract, though history has searched in vain for cases corresponding to the theory, it must be allowed that Lw-ke's statement of the original con- tract is more plausible, at least agrees better with the motives of existing human nature than that of Hobbes. There is more of truth in it, that is, it more consists with known historical fjicts and with existing traits of human nature, if wo may further assume that in certain fundamental parts human nature was the sauie in the aboriginal man as it is to-day in us. If we can supi>ise anything like a contract made by rude barbarians or savages so long ago, there would not be an unconditional surrender of all their powers, as well as control over their property, to one man, as Hobbes prefers to think of the trans- action^ They only agreed to form a jwlitical union to secure leir property, lives, and freedom, at hazard in the state of nature, which had become not quite a happy state to live in, whatever it may have been in the previous equally hypothetical state of a golden age, a fiction in which I^ocke api>ear8 to have believed. But the question arises whether the generality, as conceived » A fnllnr account of the historical method will be found later In connection with Mainc'a Political Philosophy. 64 ENGLISH POLITICAL PHILOSOPHY by Locke, would be willing to make the social contract guaran- teeing to each his property which was at hazard in the state of nature. We must suppose they would, because property was already recognised both in land and goods as being in accord- ance with reason and natural law, and because the majority had property, and inequality before the use of money was devised ^-w^s much less than it l>ecame later. It is true, the majority \ would not suifer so much in the state of nature and without law \ as the richer sort, who invited attack both from other ricli but unscrupulous persons, as well as from the brigands, robbers, and lack-alls, who of necessity lived at the expense of the rich as the only possessors of superHuities. Still the majority could also be robbed and enslaved, and their lives were in danger, and therefore we must suppose that the social contract establishing a government and law would be acceptable to them, since it promised to protect the three things they cliielly cared about — their property, life, antl liberty. M it is at this point of the story thaC ^ouK> i*]i au ta l^es it up anoint. Rousseau, though on slender historical grounds, had come to the conclusion that there had been a long period before civil governments existed ; there were even countries in which they did not yet exist; WiUsecjUently, contrary to Linrke's teaching, men did not speedily lind the state of nature intolerable, liousseau in fact had divined what historical investigation has since proved, that there were successive stages in the pre-civil state or state of nature, which he divides into the solitary hunter stage, and, omitting the pastoral, the later agricultural stage. The agricultural stage necessarily led LOCKE , 65 to private projuTty in land, and this, and not tlie invention of money, led to inequality, and great inequality to great disorders j since those without property necessarily, singly or in bands, made war on the rich as the j^ssessors of superfluous goods. The latter defended themselves, made slaves of the conquered, and employed them to make more. They became themselves Imlf brigands. The right of the strong became the rule, and set aside the right of the first occupant. The voice of justice and natural law grew faint, and mankind came to a frightful pass, something very near to Hobbes* war of all with all. Still in this general war the rich came off worst on the whole, because they bore the general expense, while their lives as well as their possessions were in danger. Nor could they put in a good plea for their riches, in part the result of force, part of first occupancy. For Rousseau does not agree with Locke that first occupancy and the labour of clearing and cultivating land gives an unimpeachable title to it and its fruits. The. situation was only acceptable to the robber and brigand class, and the idle, improvident, and turbulent spirits from which they were recruited, who levied tribute on the rich and in less degree on the poor. The way out of this ill condition was the primitive social contract, which lie considers a very astute piece of policy on the part of the rich to induce the honester sort of poor, who would be in the majority, to side with them, and liold the disorderly and dishonest in check. "Let us," in effect said some astute spokesman of the rich, "unite to guarantee the feeble from oppression, to check the ambitious, and to assure to each one the possession of what he has. Let us institute laws of justice and of peace to which all will be compelled to conform, which will make no distinction of persons. ... In one word, in place of turning our forces against each other, let us unite them into one supreme power over all^ which will govern us by wise laws, protect and defend all the members of the association, repulse the common enemy, and maintain us in an eternal concord." * The multitude, easily deceived by plausible speech, then as now, applauded this proposal. The social contract or treaty * Diseatirs snr VlrUgalU^, 5 c 66 ENGLISH POLITICAL PHILOSOPHY between rich and \^oot was duly signed, guaranteeing amongst its main articles private property. It was an extremely bad bargain, according to Rousseau, for the poor, for the generality. For civil society, with its necessary concomitant of laws and coercive restraint, only serves to maintain the rich in his super- fluities and the poor in his miseries. The contract never hould have been signed. The original state of nature was better ; and after its signature things went from bad to worse, till finally, as the sole cure for the evils that resulted, there came desiK)tic governments everywhere, in which all men lost their liberty, as they had already lost their original equality. Hence he says, opening his next book on the Social Contract, " ^lan is born free, yet is everywhere in chains." They had signed a fatal contract, which only guaranteed for them poverty, misery, and servitude. It is a question now to have a revised contract, and Rousseau will draw ui> for them the contract they ought to have signed, and one that will protect the interests of the poor. Here it is : " l^^ich of us puts in common his goods, his person, his life, and all his powers, under the supreme direction of the general will, and we collectively receive each member as an indivisible part of the whole," ^ This act of association produces a body, moral and collective, called rei)ublic or body politic, which is the State wlien regarded as passive, the Sovereign when active. This is the act of association that the different individual contractors should have subscribed, and truly enough it will guarantee the extremost claims of the generality ; for it places the property, the lives, even the liberties of all at the mercy of the general will, that is, of the majority. And the only protection for the rich would be the perception on the part of the generality that it would be against their own interest to confiscate and divide property amongst them, r As the social contract, as conceived by Hobbes, favours a j monarchy, as by Locke, a limited monarchy or parliament, so I Rousseau's conception is framed with a view to a demo< racy of I * CQn(rut Social, diay. i. 6. LOCKE 67 /^ the cxtremost type, in which the law-making jwwer and the C sovereignty ia in the hands of all. A strange inversion of ' parts, one wonld say, in which the ])ody and not the brain directs ! in which the impoverished many are trusted to spare property, in wliicli those who have no constant will, no clearness of intelligence, no knowledge, and, by the nature of the case, till we are all on a perfect level, can have but little, are to draw up just laws requiring wisdom and virtue. ]>ut the people are virtuous ; ignorance is compatible with virtue and innocence. Granted; they arc as virtuous as the classes above them, no more. They have not the wisdom or knowledge requisite. But can they not get the wiser to act for them, to represent them, and give them the benefit of their superior kno^yledge ? No, says Rousseau. The legislative power must remain in the hands of the people. They cannot be repre- sented ; if they give the i)ower over to representatives, these will become the real sovereign — the agents will become prin- cipals. It is an unrepresentable power. They must exercise it themselves. And thus it follows, as Bentham urges, that no country can have proper laws, save one small enough, like San Marino, for all the people to meet and agree to them. The executive power indeed may, and must necessarily, bo . parted with, but not the legislative, because the legislative is the real sovereign power, and the people otight to be the sovereign. In the case of the executive, its members are the agents of the people, their officials and clerks ; so ard the judges, the generals, the civil administrators. How to keep control over them in their appointment and dismissal is a difficulty which requires to be dealt with, and Rousseau deals with it in a sj^ecial chapter. All this theory was attempted to be reduced to practice, first by the sovereign people themselves, who became their own judges, soldiers, executioners, though they could not make laws ; then by means of chosen representatives (for they had to depart thus far from the anarchic theory) ill the constituent assembly, then in the legislative assembly, finally in the con* 68 ENGLISH POLITICAL PHILOSOPHY vention and the government of the Directory ; and the world knows the terrible results of the attempt to make and carry out the first two constitutions, framed according to the governing ideas of the Contrat Social. For it was the attempt to do this that led to all the terrible excesses of the Revolution after 1791. The dogma itself, before any Qonstitution was made, had startHng effects. The sovereign people stormed the Ikstille, and the world applauded ; took the king and queen prisoners, and killed their attendants ; again invaded his palace to coerce him, after the first constitution was made acknow- ledging their sovereignty ; stormed the palace ; put the king in prison ; itself, in exercise of its sovereign rights, acted as judge and executioner in September 1 792 on the suspected prisoners ; violated the sanctity of. the Convention (urged on by artful leaders), and demanded the exclusion of the moderate or Gironde jmrty. Then the purged Convention was allowed to have its own way, when it in turn became despotic, usurped the sovereign ix)wer, anil put a muzzle on the sovereign people for a time. In 1795 it again rose twice, and the second time Bonaparte was called in to put it down by artillery ; after which the sovereign people ai>pcared no more on the public stage till ^--Hhe "three days of July" (1830). \ liut strange to say, in spite of the first grand failure, the 1 terrible results of its brief triumph, the doctrine of Rousseau I and of the sovereignty of the iMJople has largely conquered in I the foremost nations; in England, France, and the United I States, in the English colonies, and partly in those countries \ where the king or monarch has granted constitutions. More- \ over, a great thinker like Kant, writing in 1796, sees a truth \ in the doctrine which ho tries to detach, in his Philusojtinj \of liUjht. He even declares that government by the col- lective or general will is the doctrine of the future. Ihit representatives are indispensable, contrary to tbe teaching of Rousseau. ^-j^^^"^ The germs orihe whole doctrine are in Locke; Rousseau merely developed them. The people whose will originally createil the government can change it. And why not keep it in their own hands as the safest deposiUiries, said Rousseau. LOCKE 69 I Wc have now discovered the necessary correction of this view, Uint the people must have representatives wliile they still retain the sovereignty so far that, when they are agreed, thoy can compel their representatives to carry out their will. The problem now is, while carrying out the will of the people, t<> control the will, and to control it with its own consent. There is one fundamental difference between Locke and Rousseau. The contract was made mainly to protect property, ac^cording to the former. Rousseau re-states it, and apparently places property at the discretion of the sovereign. Locke is surely right here and Rousseau wrong, Indeed he after- wards retracted the doctrine, whore he says: "The rights of property are the moat Kacred of all the rights of citizens, more so in some respects than liberty itself." His statement of the new social contract is therefore so far wrong. \Vc do not place our property at the disposal of the general Jfi'iWf that is, of the majority. And Kant is agreed with ( IxKjko that the protection of property is the fundamental Y dut y of, the State, as ho is with the later and retracting Rousseau. There are inileed two irrefraga])le reasons for private property ; the first is, that it is best for the poor as well as all other classes. They will all have more property finally, by recognising it, than they could hope to have under either anarchy or communism. The second is, that it is an abso- lutely necessary result of human nature, that has not changeerty where there was none before. 80 little have our communist and collectivist friends, who would push back the clock of history, restore the state of nature, and iipply 70 ENGLISH POLITICAL PHILOSOPHY Rousseau's confiscatory social contract, afterwards repudiated^ by him, all the argument on their side. 8 6 . r ^We may now, having examined the three forms of the theory, ^ make a iinal pronouncement on this famous doctrine of a social contract. There was no social contract by which men passed from a state of nature into civil society. But there was a state of nature, and there are still tribes living in it. Even if there had been a social contract made ages ago by barbarous ancestors, it would not bintl later generations as Hobbes thought. Locke, though he makes the fundamenUil mistake m to the contract having been made, is still much nearer the truth than Hobbes, when he thinks that if one of the parties, the sovereign, violates his ])art, the subjects are not bound to obedience ; also when ho thinks that the actual contract is to })e identified with the actual constitution of the government r~^ of a given people like the English. So that the actual social \ contract is the constitution, together with the fundamental civil \ laws protecting property and enforcing free contracts. The J social contract existing in the United States is the constitution ^ ' v4 the United States, and together with those of its several individual States, so far as in each they supplement it. The contract with us has varied from generation to generation according to the strength and influence of king, aristocracy, people ; it has always been and still is subject to revision, but less and less the more time goes on ; and, the people having got their due share of power, it is not subject to further change unless they foolishly abuse their strength and violate the under- 8t<^od terms of the contract by attempting tt> invade the private rights of property or the public rights to liberty. „ -^t is history alone whiuh teaches us the origin, growth, and ^ When Kouswuau was in Eiigluiul, Uuiiiu coinpliiiienteil him «»ii the Htyle, elo^ueucf, ami ornanu'ut of his works. "To tell the truth," said RouHscau, "I am not «li.si>k'a.sod with myself in that partiiular." Hut h« added, " Je crains toujours ^uc je |ti^che par le fond et cjuc tons mes systi'mes ne .sont c(;ially long possession, — in a word, of prescription ; sometimes, again, on grounds of natural justice; sometimes on the ground of utility, and. occasionally even as it serves his turn on the doctrine of a primitive social contract. Finally, we have Sir Henry Elaine, who rejects the social contract and the a>)stract method of reasoning, rejects the doctrine of natural law and natural rights, gives only a partial assent to lientham's doctrine of utility, and treats the question of the origin and development of government and law as well as political institutions and constitutions by the Historical Method. IL ON TOLERATION §1 But before consideriug the views of other philosophers there is still an important work of Locke's which concerns our subject ; and that is his Letters on Toleration (1690), in which he pleads for more than "declarations of indulgence or acts of comprehen- sion," — for complete liberty of conscience and of worship, full toleration for all sects and churches except only atheists, those who teach what is contrary to the fundamental principles of society, and those who will not tolerate others. He draws his argument from his conception of the different ends of civil government and religion ; the end of the Hrst being the protection of property, life, and liberty, the end of the second the future salvation of the individual's soul. The care of the spiritual interests of the citizens is not com- mitted by God to rulers, for there is nothing in Scripture to that effect. " Nor can any such jHDwer be vested in the magis- trate by the consent of the pco})le ; because no man can so far abandon the care of his own salvation as blindly to leave it to the choice of any other, whether prince or subject, to prescribe to him what faith or worship he shall embrace. For no man can, if he would, conform his faith to the dictates of another. All the life and power of true religion consists in the inward and full persuasion of the mind ; and faith is not faith without believing." Whatever profession we make, to whatever out- ward worship we conform, if we are not fully satisfied in our own mind that the one is true and the other well-pleasing to God, such profession and such practice, far from being of any furtlierauce, are indeed great obstacles to our salvati«»n, because thereby we add hypijcrisy and contempt of Gml to our other sins. n LOCKE 73 All this seems sound doctrine except the proposition thftt no one ran receive his religion at the dictates of another, for a grout many people do surrender their own judgment on matters of religion to wliat they take to be the better knowledge of others. Thoy bow to their superiors in knowledge and capacity, to spiritual leaders and guides, and there must always be such, just as there must bo leaders in matters temporal. People imbibe their religion slowly in early years from parents, pastors, teachers, that is, from the authoritative instruction of others ; and should they attempt in maturer years to revise the religion thus instilled, the great majority would defer to the authority of controversial or apologetic books in repute or else to eminent living spiritual teachers, though some private judgment would be needed to de(nde what books contain the most convincing arguments, or what person is capable of giving the truest instruction. Not the less, however, do the great majority take their faith on trust from their i^uperiors, and, with a few exceptions, rightly,' as only the leaders in thought and learning, who are few, are fit for full, free, and independent inquiry. And certainly neither Prince nor Parliament is fitted for this dilHcult work of instructing their subjects in religion, however thoy may have in the service of the national religion those who are competent. The second argument of Locke is that the care of souls cannot belong to the civil magistrate, because the magistrate dis- IKises only of force, and physical force cannot act on the intellect.. "Such is the nature of the undcrsUinding that it cannot be comJ)elled to the belief of anything by outward force. Confisca- tion of estate, imj>risonment, torments, nothing of that nature can have any such efficacy as to make men change the inward judgment that they have framed of things." This is true ; still persecution or civil disabilities might inchice many ordinary people to listen to the best reasons on the side of the magistrate as well as on the other side, and with the result that some of them would bo convinced ; and that almost unknown to themselven the fear of i>enaltio», as well aa the favour of the ruling party, might act on their convictions. A "gift blindeth the eyes," 74 ENGLISH POLITICAL PHILOSOPHY according to the proverb, and both feur and favour may biaa the intellectual judgment. Besides, although the father may be converted only in name liis son may bo a sincere believer. Henry iv. of France was probably only a nominal Catholic, but his son and all his other suceestjors were real Catholics. Locke allows that penalties may produce a profession of belief, but thinks such lip prtifession and outward conformity in worship displeasing to Clod, if unaccompanied with full i>er- suasion, which appears to leave out the numerous cases of belief short of certainty ; cases of real but only partial scepticism as to all forms of religion, cases where the arguments and authori- ties on the side of two ditlerent religions ajipear to be so nearly balanced that there is little to choose between them, cases where the man believes that either religious road will do to travel on. His third argument is better, but not perfect. Ho thinks that even if laws with severe penalties did produce religious conviction and change a man's religious opinions, still, con- sidering the great variety of religions in the world, and that princes themselves are of ditlerent religions, it would be a very risky thing for men to quit their reason and blindly follow their prince's religion. This part of tho argument seems sound. But he goes on to say that " there being only one truth, one way to heaven, . . . one country alone would be in the right, and all the rest of the world put under an obligation of following their princes in the ways that lead to destruction ; and, that which heightens the absurdity and very ill suits with . the notion of a Deity, men would owe their happiness or misery to the places of their birth." Now, if there be but one way, tho majority of men do owe their future happiness or misery to the country of their birth, since most men accept the religion of their country and their prince without any exercise of their reason on the matter. Let us enter into this imiK>rtant question a little deeper. I have a sacred right to form my own conception of the universe and of its Cause at first hand, if I have the ability and learning necessary ; if not, then I have a right to decide from which of several competing authorities to take a conception or receive assistance in forming one. The SUito, the magistrate, at hnist in LOCKE 75 modern times and in civilised communities, has no right to dictate to or force the subjects on this matter. It usually excee«l8 the ability of the magistrate to teach me, as it exceeds his riglit to attempt it. True, ho may appoint learned theo- logians to do it for him, but it would not follow that all the learning and capacity would be on his side or at his service. It may have been so during the Dark and Mid«lle Ages, when the Church hud within her fold all the best intellect and all the learning of the time, and was permitted by the temiK)ral power to govern religious doctrine. This state of things slowly ceased with the rise of secular science, the Renaissance, and the spread of the Reformation. It had ceased to be so when Locke was urging his vigorous plea in favour of toleration. It has entirely ceased at the present time. Ihit still more : the highest minds have not only the right to think freely on these great questions of religion, but it is the special work, the duty of some of them, to endeavour to correct imperfect religious doctrines, to revise them under the light of later scientific knowledge and philosophy, to test them so as to make them approximate nearer to truth. This, how- ever, only applies to the select few, the elect of men ; and the question whether this necessary work is to be done subject to the sujiervision or censorship of the Church as in Roman Catholic countries formerly, or under that of the Stjitc as Ilobbes wished, is now settled in most civilised countries in favour of liberty of speculation, of speech, and publication. This refers to the higher minds, but any j>erson may join himself to any of the numerous religious sects he pleases, or he may make no profession of any faith. It is not, as Locke supposes, because, when the imaginary social contract was made, religion was reserved as the citizens' private concern, and not one of the ends for the furtherance of which the State was called into being ; but because it is one of the duties of the individual as a man (especially of the higher . minds) that he should exercise his reason on the subject so far as he is competent, and because it is his right to think freely on the subject, so far as he cares to do so. Where the man knows he is not able to reason rightly on the matteri then 76 ENGLISH POLITICAL PHILOSOPHY he has a right to choose the heat guidance on the grounds of his oMm reason. Every man is not required to test the religion he has been brought up in, as Locke sometimes seems to think, sometimes not. If a man has honest doubts about it he will (unless he thinks himself wiser than everybody else) try to get the best arguments for and against it either from books, or he will seek living authorities to assist him to come to a right conclusion. But neither a sovereign, a monarch, nor Parlia- ment, still less a majority of citizens, has any competence to prescribe to him what he must believe, to do which is indeed imiwssible ; nor, for Locke's reasons, any right to force him by penalty to outward conformity ; and we may be sure that if a new social compact were now drawn u}) between sove- reign and subjects, the majority would agree that religion should not be an affair for the State, but for each man's own reason and conscience, assisted by whatever better light he can find. Toleration, religious freedom, should be allowed on the grounds as well of rational right as of general utility. S 2 According to Loi'ke, no man is born a memlier of any church. lie in not of necessity of the same religiun as his iKireuts. He joins himself voluntarily to that society or church *' in which he believes he has found tiiat profession and worship which is truly acceptable to God." He defines a church to be "a volun- Uiry society of men, joining themselves together of their own accord, in order to the public worshipping of God, in such a manner as they judge acceptable to Him, and etVectual to the ifialvation of their souls." A man voluntarily joins a particular church in order to be furthered in his eternal and spiritual interests. The great final end, his own salvation, determines ail his conduct in the matter. As he joins it because he thinks it to contain most truth and the most acceptable forms of worship, according to his reason, so he may voluntarily leave it for one he deems a l)etter one. Such a church, like every s(x;iety, may and must make laws for its members or it will dissolve ; but such laws LOCKE 77 ••xUmkI only to its own intMnbers. There need not be any ))iahop or presbyter, nor even apostolical succession to constitute a chunih. Tlie words of Christ are decisive : " Where two or three are feathered together in My name, there am 1 in tlie midst of them." There need be nothing in the doctrine or ritual of any church but what is laid down in Scripture, nothing that Scripture or Christ Himself has not declared necessary to salvation. Laws and discipline ought to relate strictly to the end, eternal salvation. There should be no force behind the ecclesiastical law. Exhortation, admonition, are allowed to enforce duty on members, failing which, there is "excommunication." The "stubborn person should be cast out and separated from the society," He then raises the question, How far toleration extends ? and he replies, first, that no church is bound by toleration to retain a member who will not conform to the laws of that church. Such a one may be excommunicated, but without injury to his pcTson or property, and without force, for force Ijelongs only to the civil powers. SecoiKlly, no private jierson has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion. The same holds of i)articular churches as of particular indi- viduals. None of them have any power or jurisdiction over another, even though the ruler of the State belongs to one of them. The civil government of the State can give no new right to the church, aa before defined, nor the church to the civil government. Thirdly, as to ecclesiastics, whatever be the source of their authority, it should be strictly confined, and not extended to civil matters, because the Church is absolutely separate from the State, and both are, "in their original end, business, and in everything, perfectly distinct and infinitely different from each other." It follows, therefore, that no man, whether Pope or Archbishop of Canterbury, can deprive another outside his church either of liberty or worldly goods on account of sup- posed errors in religion. Not only should ecclesiastics abstain from persecution, but 78 ENGLISH POLITICAL PHILOSOPHY they should exhort others, whether private })er8ons or the magis* trate himself, to "charity, meekness, and toleration" to all other sects. They of the National Church especially should do their he«t to allay heats and animosities against Dissenters. The opposite sjnrit has led to strife, persecution, and war, and 18 scarce compatible even with friendship. Lastly, as regards the duty of the ruler in the matter of toleration. lie must not use force to comi)el belief. He may admonish and tench, as may other men. The care of each one's soul is intrusted solely to himself. He may indeed 1h^ careless about it, just as ho may be about his health or property. It is true, there is only one road to heaven, but that road he thinks wide enough to allow all to travel on it who "are agreed on the substantial and fundamental part of religion." Even allowing the path to be narrower, the prince is not more likely to know the true way than another, being born with greater power, but commonly not with great powers for ascertaining the true religion, as appears indeed from the fact that they have embraced so many dill'erent religions. He may, indeed, reft^r me to the church for arguments, which of course will be his own church, but how am 1 to know that it is the true church t The decisive con- sideration Htill remains that though the magistrate's opinion may be the true one, unless I am convinced it ia true it will be unsafe to follow it. " I may grow rich by an art I take not delight in ; I may be cured of some disease by remedies that I have not faith in ; but I cannot be saved by a religion I distrust, and by a worship that I abhor." "In a word, whatever may be tloubtful in religion, yet this at least is certain that no religion which I believe not to be true van be either true or profitable unto mo. In vain there- fore do princes compel their subjects to come into their church communion, under pretence of siiving their souls. If they believe, they will come of their own accord ; if they believe not, their coming will nothing avail them. How great so ever, in fine, may be the pretence of goodwill and charity, and concern for the sidvation of men's souls, men cannot be forced to be saved whether they will or no; and LOCKE 79 tliorofore when all is done they must be left to their own conscionccs." The nia^'istrate may not imjiose by law any rule or cwemony. What is contrary to law or morality he may forbid in churches. He cannot deny toleration on the groimd that the Avorship is idolatrous as a doctrine, which wouM lead to universal persecution. Kven pagans shouM be tolerated. Under the ^Fosaic law, indeed, idnlators were to be rooted out, but Christians d(» not live under the Mosaic dispensation. So far as to outward worship. As to speculative opinions, as already shown, none can be imposed on any church by the law of the land, or by tlie prince, nor ought lie to forbid any speculative opinion, because none such can have any relation to the civil rights of his subjects. The doctrine of the Real Presence does no injury to non-believers in it; nor does the Jews' non-belief in the New Testament, nor the pagans' doubt of both the Old and the New Testament, do any harm to the Christian believers. But so far as religion consists in right moral actions, it concerns the civil government, which aims at controlling men's actions in general in a moral direction. Here there is danger of a collision between the two spheres, — that of the government and of the overseers of souls: of the law and the private conscience. Here, however, a duo regard to the limits of each may prevent collision. Toleration should be the nde. But there are exceptions. "First: no opinions contrary to human society, or to those moral rules which are necessary to the preservation of such 'society, are to be tolerated by the magistrate." But few reli- gious Ixxlies, he thinks, have ever professed such ; though the Anabaptists of Germany came very near falling within this exception. A second and more dangerous class ought not to bo tolerated, those, namely, who arrogate to themselves some pecidiar preroga- tive covered over with a specious show of deceitful words, but who are really opposed to the civil rights of the rest of the community. Such are they who assert that "Dominion is founded on grace," i.e, that it should appertain to themselves as the chosen vessels' of grace. Thirdly, those who will not teach 8o ENGLISH POLITICAL PHILOSOPHY aiiil practise toleration in matters of religion ; those churches, again, who deliver themselves up to the protection and service of another prince, " sucli would be a Mohammedan church in England if its members professed their obedience to the mufti of Constantinople, who is entirely obedient to the Ottoman emperor." " Lastly, those are not at all to be tolerated who deny the being of God. Promises, covenants, and t)aths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all." §3 Such is Locke's doctrine of toleration, as given in his first and on the whole admirable letter. There follows a second, longer, and more laboured letter, in reply to an anonymous critic who accepts the greater jmrt of Locike's argument, but who still contends that " moderate force " " applied indirectly, and at a distance " by the civil magistrate, may bring i^eople to the true religion by inducing them to weigh and consider the arguments in favour of the magistrate's religion as well us the iJissenter's own. Ix)cke, who is a very clear-sighted logician, and a formitlable though prolix controversialist, in general has an easy victory over him. He shows that this moderate punishment would be unjust because inflicted on Dissenters for no fault ; that if long continued it would become immoderate and severe; while admitting it to have any effect, the argument in favour of it would justify extreme persecution, antl not merely the per- secution of non-conformists in England, but of Protestants in Fmnce, and of Christians in pagan and Mohammedan countries. He shows further that if the view were a sountl one it should be applied to conformists as well as non-conformists, since both alike in many cases assent to their religion on wrong grounds, and without much examination ; and therefore if penalties are good to make people weigh the grounds of their religion, there should be penalties for all. Further, that punishment hi all degrees is only good to province conformists and mere professors, but not convinced believers. After a LOCKE 81 vigorous, unsparing, and prolonged jwlemic, he finally disj^ses of his enemy at nearly all point**. Hut there is one somewhat doubtful argument employed by IxM'ke, namely, that civil society was constituted solely for the prote(;tion of proi>erty, life, and liberty from the attacks of others ; that the sword was intrusted to the civil magistrate, but not for the purpovse of enforcing religious truth. It is objected to this that civil society was instituted for all the gooeople adhered olistinately to their own. There was no attempt to force unity of doctrine, because the rilling classes, a little sceptical about their own religion, thought that all religi«»us were serviceable forces in the cause of order. Ihit when Christianity came ofl'ering itself as the sole true religion, and a universal religion, the attitude of the rulers became tlifferent. The Christians were i>ersccuted by Nero, even by Marcus Aurelius, LOCKE 83 the wisest and best prince who over ruled. Was he justified in porsocuting them 1 He persecuted them because, first, he did not believe the new doctrines to be true ; secondly, because he thought that, even if true, they would, if widely accepted, dissolve Roman society, of which he was the guardian. He th< night their religious opinions incompatible with the duties of a Roman citizen, because the Christians, looking to a celestial city and even an early passing away of the existing order of things, j)rofessed to be indifferent to mundane and civic matters. Ho was >vrong as to their being bad citizens, but from his point of vicAv and his position lie could only so regard them, and he felt it his duty not to tolerate them. Accordingly he persecuted them, but only to such a mild extent as might prevent the heresy from spreading without rooting out the sect. Will Ijocke's argument apply that ho was not justified in persecuting ; that the civil magistrate, the prince, may not use force because the end of the State is only to protect life and property? With the Romans it was more, to maintain and defend their religion as well as protect property. The emperor was the head of the religion, the "defender of the (Roman) faith." Can it be said that he was not justified because he could not be certain that the new religion was not truet He could not be certain indeed; still he was the wisest man of his. time, and he felt morally certain that it was not true, and more certain, if iwssible, that it was in- compatible with the continued existence of the Roman 8tate, even though its high morality contrasted favourably with dissolute Roman manners. Rut should he not have trusted to the inherent tendency of Truth to prevail, if she has but a fair field and no favour or force is employed 1 Should he not have had the robust faith that what is true cannot Imj hurtful to society in the long-run, though it may disturb a corrupt society t But this is to suppose that Marcus Aurelius haeen lost, and Christianity could not have become a world-religion whose great mission was still before it, to convert and humanise the barbarous nations of Euroi)e. It was necessary at all hazards at that time to have unity of spiritual authority and unity of doctrine. For this purpose the strongest had to suppress or make the other sects to conform. Besides, con- vinced men, if they have the power, must i>ersecute, unless they discover that persecution may defeat its end and protluce a gi'eater numl^er of heretitjs, or that it nmy give rise to retaliatuis xiv. finished the work. They were stamped out in Bohemia. I>ut in Sweden, Denmark, Scotland, Northern Germany, and England the reverse took place. The case of England was peculiar. When the reformed doctrines appeared, Henry viii. took his stand and never wavered. He reformed certain abuses in the Church, dissolved the monasteries, but would admit of no reform in doctrine. Ho was a sound Catholic in all points except that he denied the supremacy of the Pope, and would himself bo Supreme Head of the Church. He punished the Catholics if they denied his supremacy, the Protestants if they denied his Six Articles containing the essence of the Catholic doctrines; in the second case to save society from a licrcsy that convulsed the Continent and to save his subjects from a deadly peril to their souls. Had he lived twenty years more (he was only fifty-six at his death), very likely the Reformation in England would have been checked efTectually, tliough not with- out much persecution, perhaps rebellion. He died at a critical hour. The Reformation was favoured by his brother-in-law the Duke of Somerset and by other nobles who had shared in the spoils of the Church property. The Reformation, which had already spread far in an underground sort of way, being now encouraged and established, spread still more. TJie Reformers in their persecution were forced to employ their adversaries' weaiwn in self-defence. Then came the short but terrible reaction and persecution of Mary's reign, which, had Mary lived as long as her sister Elizabeth, would probably have succeeded. Most fortunately this did not happen ; and fortu- nately Elizabeth had embraced most of the reformed doctrines. 86 ENGLISH POLITICAL PHILOSOPHY She and her ministers persecuted, and were absolutely com- pelled to persecute, the Catholics ; her crown, her very life, as well as the fate of the Protestant religion, being at stake from the Counter-Keformation. After her death James had to con- tinue persecution owing to the Gunpowder Plot. There was not the same need for repression in the time of Charles i. Though the Parliament continued hostile to the Catholics, Charles himself and Laud preferred to persecute the Non- conformists; finally, Charles in an evil hour tried to force Kpiscopacy on the Scotch, an attempt which precipitated a crisis, and ultimately a civil and religious war. The perse- cution of the sects had not been sutticient to root them out or to prevent them from spreading. The Independents and Presbyterians in Kngland had grown too strong, and Laud's persecution came too late. They joined and formed the strength of the parliamentary party; and chiefly owing to their religious zeal and enthusiasm they overthrew the king in the fleld, abolished the Monarchy, the House of Lords, and the Episcopal Church. The Parliament, having conquered, in its turn persecuted the Kpi8C0i)aliiin8 and the Catholics; and it was natural, when triumphant, they would foHow the example set them. Cromwell was the first who showed a tolerant spirit. After the Restoration Charles ii. fell back on the ill example of his father and pei-secuted the Presbyterian Church, a \Ki\ky that was continued by his brother James ii. It was the most terrible and prolonged persecution that that Chunh ever Buffered; but, far from being successful, it materially helped to bring alxmt the spirit of toleration in •Kngland which soon after manifested itself. The time was come fur toleration, and Locke's plea came at this opportune moment when most of liis arguments told with great force. The great argument for toleration, but one not always applicabl(>, is that truth in religion comes from the collision of minds. Truth is all the better, and all the truer, from having to contend with rival opinions. As Milton says, " Let her and falsehood grapple ; who ever knew Truth put to the worse in a free and open encounter ? " And the LOCKE 87 toleration should be univorsal, embracing oven the ntheints nntl those who attack tlie fundamentals of society, so long na the latter confine themselves to arguments. Atheists, if there l)e any, should not be excei>ted, first, because people are not agreed in their definition of " atheist." For example, is a materialist who deduces the universe and all within it from atoms an atheist; or a pessimist, who thinks the principle at the bottom of the world necessarily produces more evil than good ; or a Comtist, whose only Deity or supreme Being is an abstrac- tion cAlled Humanity 1 Different i»ersons would answer differently, and philosophi- cal speculators might find themselves dubbed atheists, and denied toleration on T^ocke's principles. Far better to tolerate all and give them all "ample verge." All the above-named philosophic sects, and some genuine atheists under the name of secularists, have had freedom for many years past. They . have been met by argument, and they have got the worst in the encounter. Who now hears of the rude atomism and materialism of Huxley and Tyndall and Clifford so lou«lly vaunteosed to natural society ; th(^ evils necessarily incident to all civil society being described in language worthy of the Origine ite Vliugalito of Rousseau, who.se spirit it often breathes. The work was able, sometimen eloquent, but it was nut original, and makes no contribution to political philosophy, though it served to introduce lUirke to the notice of Mr. Gerard Hamilton, the Secretary for Ireland, whose private secretary he became for some years. In 1765 came his real opjKjrtunity. He was apiM>inted private secretary to the Marquis of Rockingham, a principal magnate in the Whig party, and a high-minded man, but of only niotlerute abilities. JJurke was retiirnotl in the same year to Parliament as memljer for the |KK;ket borough of Wendover, and in Parliament at once proved himself the greatest orator in BURKE 89 tho HouRo, from his nmplo knowledge, cxuhemnt imagination, and easy command of sonorous and magnificent language. In 1769 he imblislied his Ohsprvatiom on the State of the Nation^ in which, by his mastery of economical and fiscal subjects, he proved himself more than a match for Grenville, the great expert in tlie "political arithmetic" of the time. In 1770 his celebrated Thoughts on thp Presr-nf DUcontents appeared. This was a manifesto for the Whig oligarchy, and contained a power- ful and scathing atta(;k on the new jwlicy of the Court party, which trieolitic8. They are, in fact, masterpieces of practical political wisdom ; and if their counsels had but been followed, the great Anglo-Saxon race of to-day might have formed the common subjects of a great united empire, and a ruinous and humiliating war have go ENGLISH POLITICAL PHILOSOPHY been avoided. lu fact, Burke's counsel deprecating war with America appears just as wise as it appears wrong or doubtful twenty years later wlien urging on war against revolutionary France. He became after this a "man of light and leading/' to use his own phrase ; was lung the inspirer of the Whig i>arty, though strange to say, considering his pre-eminent services, he never had a se^it in any Cabinet. He carried his scheme for economical reform, which he introduced in a masterly state- ment. He opiK)sed parliamentary reform, extension of the suffrage, the relief of the Dissenters, that is to say, he was nothing of a Democrat, but merely a Whig with Conservative instincts, whom Dr. Johnson believetl to l>e a Tory at heart. He made a great speech in defence of Fox's India Bill (1783) ; opened the impeachment of Warren Hastings in another s))eech of iniapproachablc eloc^uence and of almost superhuman effort. He displayed great violence and want of temper and discretion during the debates on Pitt's Kegency Bill (1789), was in con- sei^uence (as Mr. Morley tells us) neglected by his own party and insulted by the younger members of the op^josite jwirty, was beginning to feel that ho took ptirty strife too much to heart, and that ho manifested an over-solicitude "relative to the present state of affairs " unsuitable to his time of life. He wished to take things cooler, to feel that they should be more indifferent to him. This was early in 1789. He was then over sixty-one years of age, and he began to dream of a peaceful country life in the evening of his days, and nu*ditated an early retirement from Parliament, when suildenly there came news from France that changed the current of bin thoughts and the tenor of all his remaining years, that drove away his thoughts of a retired life, and summoned him to Uike a leading part on a greater stage than the House of Commons, — the stage of European iK)litic8 at the most critical hour of European history. For the French Revolution had broken out, and for the next six years the eyes of all Europe, and especially the eager eyes of Burke, were turned on France, ami fascinated by the extra- ordinary drama that there began to unfold itself^ BURKE 91 From tlio very first he Imd Bomctliinj; like evil forebodings. In him alone the taking of the IJa'^tille by the populace aroused no joy or exultation, but only doubt and apprehension, which fresh excessea and the rural jacqupnes speedily converted into alarm and aversion. The capture of the Bastille looked too like unjustified rebellion against a welUlisposed prince; the killing of the governor too like a cruel and savage murder. l^>ut it might bo only a temporary outburst of " the old Parisian ferocity," and if so, things might proceed more liopefully. He waited and watched the course of events with rapt and anxious attention. After the famous night of the 4th of August, when the nobles and clergy surrendered their privileges and feudal France fell, his apprehensions deepened. After the extra- ordinary days of the 5th and 6th October 1789, when the king, queen, and infant prince were compelled by force to return to Paris from Versailles under the most painful and humiliating circumstances, he finally made up his mind as to the evil character of the new Revolution. On 9th February 1790 he made a speech in the House, which gives in sum the views he afterwards maintained in his book. "The French hatl shown themselves the ablest architects of ruin that haor the long- expected work ttpiH?ared, and at once produced an extraonlinary impression. It well deserved to do so. For it is an extraordinary and in some respects a unique book ; a deep l)ook on political philo- sophy, but one wliich any educated man could comprehend, owing to its freer and broader treatment of topics, Home of whicli do not easily lend themselves to exact distinctions, or the abstract methods of previous political philosophers ; a boi»k in which all the powers of the thinker, the wisdom of tin* practical statesman, the arts of the rhottivician, the felicity of expresHion of the man of letters, are blended to iiroducc a marvellous whole ; a book withal in whiidi are to be discerned in rough the lineaments of a new political philosophy, governed by a new method of treatment, a method ditrerent from that of Hobbies and Locke, ilitlerent also from those of his contcm- |X)raries HousHcau and Kant; — the first Knglinh book, in fact, in whi(;h the new Historical Mi^hod of inquiry and explanation is employed. The immediatt^ object of the book, however, was a practical one, not to write a treatise on jiolitical science, but to turn the tide of admiration which since the capture of the Hastille had been flowing in favour of the Revolution into aversion to its exccsHos and forocitien, and alarm at its evil example of property phnuh-rcd with impunity j to crystallise the uuwh of fluid and uncertain feelings in a directi(»n hostile to the Ke volu- tion ; a thing which might be done by a man with intellect, knowledge, and rhetorical gifts, and which dtuie in time might produce great and far-reaching results. He felt that it was a great crisis, that great things were in expectation and impending every wln^ro, that in many countries there was "a Imllow mur- muring underground," u " confused movement that threatens u BURKE 93 general carthossible occurred, and more and more alarmed him as time rolled on. Prmligious things not within the ken of his philo-. sophy, events that no knowledge of history could have enabled anyone to foresee, as in fact he afterwards allowed, took place. The permanently valuable part of the book consists in its fresh treatmeirt of the fundamental political topics, in connec- tion with the principles of human nature on its political and social side, sometimes in single pregnant sentences, sometimes * Except in certain instanoeared on earth." ^ ENGLISH POLITICAL PHILOSOPHY iu whole (lages together, and apart altogether from his main subject. The scattered portions when brought together are found to contain something like a complete and coherent political system with a political doctrine; a new theory of the origin and nature of society and of government ; of the ditferent kinds of govern- ments, with their merits and drawbacks ; of the ditferent ends proposed by the different governments; of property and its justifi- (Uitionj of the Church and the State, their several functions and intimate fusion in the liritish polity ; of the anarchic and the real rights of man ; in fact, all the topics treated of by Hobl)es, Lo(;ke, and Rousseau, together with some not iliscusseil by them; but all from a new point of view, which allowctl him to treat the subject in a different and more attractive style than was compatible with their abstract and geometrical methods. ,. But it is especially when taken in connection with his Appeal from the New to the Old Whicjs^ which is really a continuation of the Reflections^ a tilling up of gaps and omissions in the latter, that we get his complete jxilitical theory. It is in the Ap])eal we get his theory of the people and their natural leaders and chiefs, his searching criticism of Kousseau's ilogma of the sovereignty of the people, and of equality, together with other important matters necessary to round his system. In the two books taken together we have in fact a new answer to the old and fundamental political questions, and a defence of civil society, attacked in theory by Rousseau and in earnest fact by the advanced Revolutionists across the Channel; a theory ditferent in most of its comrlusions from that of Hobbes, but yet so far agreeing with him that he thinks an established government or existing constitution of whatever form sho\dd Ijc accepted and obeyed; iu particular, that our own ' balau(;ed and ancient constitution should be "enjoyed not dis- cussed." It is ditferent again from the theory of Ix)»ke, but yet so far agreeing with his own earlier lyw-kian olitical prophet, in that he does not defend laws and political institutions solely on the ground of general utility, hut also on the ground of long contimiancc or Prescription. 55 3 The immediate occasion of the publication of the Reflecfionft was the preaching of a sermon by the eminent moralist Dr. Pride, on November 4, 1789, at a dissenting meeting-house in the Old Jewry, in which, after exulting in the spectacle of the King and (^ucen of France being led in triumph to Paris, he main- tained that the English people had acquired by their llevolution of 1688 three fundamental rights, namely, to choose their own governors, to cashier them for misconosterity, just as proi>erty is inherited, enjoyed, and passed on. By this view of the people's liberties (and the like holds of the rights of the Crown and of the nobility) our political system l)ecomes, according to Burke, " the image of a relation in blood binding up the constitution of our country with ottr dearest domestic tics, and adopting our fundamental laws into the bosom of our family affections," — a view which does not exclude "a principle of improvement, while it furnishes a sure principle of conservation and a sure principle of transmission. In this way the spirit of freedom is tempered with an awful gravity, and the sense of long and liberal descent inspires with a sense of 96 ENGLISH POLITICAL PHILOSOPHY Imbituul native dignity whiuh provents upstart insolunce. . . . Our liberty becomes a noble freedom, having i)odigree and illustrating ancestors." Our whole political system is a thing depending on inherit- ance and long history ; in France it was otherwise. There the people had lost their political inheritance, their ancient privi- leges, though they had not lost the memory of th(>m. They might have been recovered in precise form at this Revohition. The French jjeoplc might have gone back on their jwist history ; they might have recovered their original coUHtitution, the elements of which existed formerly " very nearly as good as could 1k3 wisheast history, of acting ♦' as if they had never been moulded into a State and had everything to begin anew." And 8upix>sing the past generation had appeared unworthy, they might have gone still farther back the long stream of their history till they foimd an ancestry worthy of their respect and honour ; or they might have copied from the English constitu- tion, to their own benefit and as a good example for the world. The French reformers had simply missed a golden oppor- tunity. " There was a smooth and easy career of felicity and glory laid open . . . beyond anything recorded in the history of the world." Instead of this happy consummation, France was a wide ruin materially and morally ; iH)verty over the land, a ferocious dissoluteness of manners, insoh'ut irreligion in opinions and practice, universal corruption — the instructive monuments of rash and ignorant council, proceeding from extravagant and presumptuous speculations, which have taught these reformers ami councillors to disregard all the past of their country. Were these terrible results, like the devastation accompanying a civil war, at all necessary? Far from it. There was no opposition to the National Assembly. It was a " pure choice of evil." What was the cause? The comjiosition of the National Assembly, he replies, made up chiefly of country advocates, village cures and d< actors, but without men of proi)erty, especially of landed property. BURKE 97 Compare sncli a body with the iJritish House of Commons, " in which is to be found everything ilhistrious in rank, in descent, in hereditary and acquired dignity, in cultivated talents, in mihtary, civil, moral, and political distinction that exists in the country." And then observe the fact that the House of Commons, though its power is very great, is "limited by laws, constitutional usages, positive rules of doctrine and practice, limited again by the House of Lords and the power of the Crown." In fact, its i>ower8 are but a " drop of water in the ocean" compared with the powers usurped by an Assembly that was restrained by no fundamental law, no convention, no respected usage, and so far from being checked or limited by a constitution that it may make any constitution it pleases, and was now engaged at that very congenial task. There was absolutely no restraint. There "was nothing in heaven or earth to control them." Not the representatives of the clergy certainly, who were chiefly discontented and ignorant country curates, and not the best of their order, or they would not have abandoned their proper function of guides to their flocks ; nor a small number of nobles, who had betrayed their trust to gratify their ambition. In every- thing in Franco they " were off the high road of nature," and the fundamental reason was because "the property of France did not govern it," with tlie result that property was destroyed and liberty had ceased to exist. There was but a impcr circulation and a stock-jobbing constitution. This first group of rcllcctions and sweeping denunciation of the National Assembly merits some words of comment. And, first, the notion that Frenchmen might have claimed their liberties as an inheritance of which they.haccially to men in the 7 98 ENGLISH POLITICAL PHILOSOPHY most civiliaed communities, rights that our best philosophers say we should possess, but wliich neitlier wo nor our fathers ever did enjoy, or the latter only in imperfect and doubtful form a long time ago. We l)elieve in natural rights. There is a natural justice so long as there is a moral sense and a sense of justice in men. These natural rights, civil and (>oliticttl, that we should jiossess, we have from time immemorial Ijeen deprived of, and we now reclaim them, not on the same grounds as the English people, who enjoy most of them, can claim them, not on grounds of inheritance and long possession, but for an opposite reason, because we ought to enjoy them, because they are natural rights not possessed l)y us. And it would only make this claim the stronger, if it be true that in past time we possessed them. If we once possessed them, our oppressors and plunderers can only plead prescriptive rights for their oppression. But no time, however long, can create prescrij> tive rights to deprive us of natural and imprescriptible rights, the right to liberty and the fruits of our labour, of which the great majority of Frenchmen are deprived. And this plea is sound, as we shall nee later when he formally raises this very question. The jMJOple of a civilised country ought to enjoy liberty, until at least it proves itself unfit to have it, as may happen. And its citizens ought to have the benefit of social justice as revealed to the wisest jural and moral opinion of the age. liut the French people before 1789 neither enjoyed liberty nor could obtain justice, and the time haut he has not a right to an equal ower, authority, and direction which each individual ought to have in the management of the State, that I must deny to be amongst the direct, origiiuil rights of man in civil society ; for I have in my contemplation the civil social man, and no other. It is a thing to be settled by con- vention." We have here, perhaps, the most important paragraph in the entire book, and fortunately, though it raises vital questions, it is tolerably clear and free from rhetoric or apparent bias. It is to bo noted that lie allows to men in civil society certain real rights, while ho denies others claimed by Dr. Price and other thinkers. He allows rights or " advantages " conferred by law, which is only "beneficence acting by a rule" (a description which would be true if there were no bad laws or class legislatiou). Apparently be does not l)elievo there are any moral or natural rights as distinct from those conferred by law. And apparently all law is just and perfect and un- susceptible of improvement. Lut both of these are funda- mental mistakes. Actual law may be bad, and there is such a thing as natural law as surely as there is moral law, of which the former is a part, a thing acknowledged by all m6ral philosophers, jurists, equity lawyers, by all except the later iitilitarians, by Burke himself in another place. But natural law implies natural rights, or ** lights of man " if anyone prefers the phrase. Such rights would bo ampler in a state of nature, because the business of law is to limit some of them in society for the good of the whole. This natural law is earlier than civil or positive law, as morality is earlier; it is deeper than law, is the model to which law should approximate by incorporating as much as possible of it, io6 ENGLISH POLITICAL PHILOSOPHY provided such addition is not contrary to the general good, or does not trench on the general liberty which is one of the greatest goods. The legal rights are never co-extcnsive with these natural rights, but they tend to approximate to them ; they are sometiuieH, but not in many cases, in conflict with them, as where the law recognises slavery and gives the owner legal rights contrary to the natural right to liberty. And that natural law is the nioilel which the civil law ought to follow, is recognised by all philosophers and juriHts from Roman timoH to our own. It was recognised by Burke's contemporary, Black- stone,* as well as by the French jurists, and not alone by Rousseau. It has indeed been denied by Bentham on the ground of its anarchic tendencies, also nominally denied by Burke for the same reasons, and in consequence the doitrine fell into temporary discredit in Englaml. But it never lost credit in (lermany, it is the foundation of the Philosophy of Riijht of Kant, while in Kngland it has been taken up by Herbert Spencer into a deeper utilitarianism than Bentham's ; and as it already is part of the Knglish intuitional morality and of the Kantian morality, it is likely to prevail more and more in the future.'- Let us now take up the real rights of man as given by Burke. He allows to men the "right to the fruits of their industry," and to the " means of nuiking their industry fruit- ful." But if so, was it just that more than one-half the fruits of the French peiisant should be taken from him for generations by Seignorial exactions, monarchical ami clerical taxes ? Then in the case of large manufactures how are we to measure the "fruits of industry"? How much should go to the employer, the skilled, and the unskilled labourers respectively ) Is all to go to lalxnir, as the Socialists say, or is the amount to be settled by contract? Are the skilled antl unskilled to get equal shares of the fruits? The real right here alleged does not carry us far; it is too vague. Then the children have a right to the awpiisitions of their parents. Yes ; but if several, is it in equal or unequal shares? By Roman law, which ^ UUckstouo'H CwnmciUarua, lutroduotion, p. 43. » Social Statics^ also Man versus The Statft chap. iv. BURKE 107 the FroiK'li C«>ose of his jiroperty in an absolutely unfettered manner, and even to the extent of disinheriting one or all of his children 1 Is it one of the " real rights " of man to disj^se of his proi>erty by will absolutely as he pleases, and to fix its destination for centuries after his death 1 If a man have a right to the fruits of his industry, would not rents be unjust and oppressive which, in a country mainly agricultural, amounted to more than half of the fruits, and which, if, in addition, it was overpopulated, might through com- petition amoimt to the total produce except bare subsistence t We see that, even if Burke's real rights were admitted, they raise disputes that can only be settled by falling back on our sense of natural justice, assisted by reason, and so by covert reference to some natural riglits of man. Again, he allows that a man has a right to a " fair portion " of ** all that society, with all its combinations of skill and force, can do in his favour." l>ut what is a fair portion 1 It would seem a sliare proportioned to his property, and, by consequence, a poor man's share would be zero. He certainly has not a right to an " equal dividend in the product of the joint stock." To this we must agree. Then as to political rights, he has not a right to " an equal share of the public authority or influence in the direction of the State," for in a given State that is a matter settled by convention, since we arc not discussing the rights of man in a pre-civil State. What these primitive rights were is not in question. But, We ask, admitting a convention or original social contract, does it bind all future generations 1 Can a convention never be improved, altered, or made afresh? the terms of a bargain, originally imperfect, never be revised t Or, if the constitution io8 ENGLISH POLITICAL PHILOSOPHY contains the terms of the convention, can it never be revised 1 and might not every adult male who is not a pauper claim to have a vote under it 1 Has he not a natural right— a right founded on justice — to a single vote as u man, though not to equal influence in the direction of the State, which everyone allows to be absurd ? But Burke, though professing disdain for political meta- physics, is obliged to go for a moment into that shaking quag- mire. He admits that there may bo a state of nature in which, as Hobbes maintained, men have a much greater amplitude of rights, of natural rights, tlian men in any civil society. He so far agrees with the theorists as to say that "one of the lirst motives to civil society, and which becomes one of its fundamental rules, is that no man shouhi be juthje in his own cauie." By this he abamlons a very great and important right of man in a state of nature, or, as ho calls him, ** uncovenanted man," the right, namely, to judge for himself, to assert his own cause ; also he abandons in great measure the right of self-defence, the " first law of nature." He gives up his right to be his own judge that he may get justice, and the private right of self-defence that ho may get the stronger defence of the public sword ; that he may get some liberty, ho makes a surrender in trust of the whole of it. Government is thus an invention, a contrivance of human wisdom, to provide for human wants. But t)Utside of sixjlety and government there is the " want of a suHicieut restraint on the passions." Here we have possibly a reminiscence of Hobbes. This restraint on the passions, not only of individuals but even of the mass and body, can only be exercised by a power out of themselves, and " not subject to that will and to those passions which it is its otUco to bridle and sulxlue " ; such restraints, being useful, are also to be reckoned rights of men as well as their liberties — a «loctrino which disposes of Rousseau's doctrine of the sovereign people, and Dr. Price's theory that the pet)ple can cashier their kings, unless the sovereign places these restraints on itself or agrees that it will suft'er such restrauits to be put on its capricious will. But he adds, 08 the liberties, the restrictions, vary with timen and BURKE 109 circumstances^ and admit of many moditicationp, it is folly to discuss them in an abstract manner. lie does not ahsolutely admit tliat civil society originated in a social contract, nor does he deny it. But he says, if it originated in a convention (social contract), that contract must bo its law, and the legislative, judicial, and executive powers *' are its creatures " ; in other words, the form of government and constitutions spring from it, under which, therefore, man can no longer plead natural rights, but only such as have been settled by the constitution generated by the social contract. lUit, as he says, it is foolish to discuss the question in the abstract fashion, since constitutions vary with times and circumstances and countries. I^t us therefore drop that way of looking at the subject He then goes on to show that " the moment you abate any- thing from the full rights of man each to govern himself, and suffer any artificial positive limitition upon these rights, from that moment the whole organisation of government becomes a consideration of convenience. This it is which makes the constitution of a State, and the duo distribution of its powers, a matter of the most delicate and complicated skill. It rcfpiircs a deep knowledge of human nature and human necessities, and of the things which facilitate or obstruct the various ends which are to be pursued by the mechanism of civil instit\itions. The State is to have recruits to its strength and remedies to its distempers." And from this you might supijose that a constitution like the English one was made at a stroke or a sitting by skil- ful statesmen or constitution-makers like the Abb6Sieyes, instead of being a matter of slow growth and accommodating itself to changing circumstances, in particular to the changing power of king, aristocracy, and people. Our constitution has a history. It was not made at a particular time by mero states- men. The wisdom and adaptation, stich as they were in Burke's time, were never the result of the wisdom of one, though some of the particular changes and improvements came from superior statesmen and legislators. All this, indeed, Burke well knew, and elsewhere strongly insists upon it no ENGLISH POLITICAL PHILOSOPHY To uiaku a constitution, he adds, is a delicate matter, and the "science of constructing a commonweal th, or renovating or reforming it, is, like every other experimental science, not to be taught u }yriori" All this is directed against the men of theory, the Rous- seaus, and Prices, and Sieyeses, the men who drew up paper schemes of constitutions without ever having mingled with affairs. There is some force in it when the details of a constitution are under consideration ; then the man of practice is required, and good models, if they can be had. But Htill the origin, nature, kinds, and growth or history of constitu- tions are matter for "the professor of metaphysics," as he styles the speculators on government. He would rebuke their presumption in invading his province, because the science of government is a practical matter und intended for practical purposes — a matter which ** requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing ho may be " ; all which may be true, but little to the purjwse. The French were making a con- stitution for the first time. They believed in their abstract rights, in natural rights, in the rights of man, and they meant to recognise them in their constitution, and not to follow the English model, of which Burke was so enamoured. As they had not experience, they had to acquire it. But they had the knowledge of other constitutions before their eyes, and they had the speculations of political philo80i)hers like Rousseau, which counted, and rightly, for something, although subject to human fallibility. Returning to the rights of man in society, they are at least, he thinks, diil'erent from the primitive rights in a state of nature, and it is absurd to confound them as if they were the same. The rights, as conceived by the theorists, are all extremes, — "in projwrtion as they are metaphysically true they are morally and politically false"; whereas the true rights of man are in a sort of "middle," or mean, incapable of detinition, but still discernible. As l)efore asserted, the rights in government are those advantages which may lie in balances between different goods, BURKE III coinproiniscs between good and evil, even between evil and ovil, and true political reason is a computing principle ; adding, subtracting, multiplying, and dividing these quantities, which are ' not mathematical or metaphysical, but true " moral do- nominations." "With the theorists the rights of the i>cople is the same as their power, which makes might equal to right. The whole of thorn, however, have no right inconsistent with virtue, esjioc.ially prudence, the chief virtue. They have therefore no right to what is not reasonable, or to what is not for their own good; which last is certainly sound and important doctrine, though whether they might not plead for a right to vote for representatives as an advantage to themselves, and not inconsistent with the good of the commonwealth, is a question left unanswered. And here he leaves this central and important question, after rather imperfect treatment, to be taken up afterwards in the Appeal from the New to the Old Whigs. §6 A third passage in Dr. Price's historic sermon, where he sjxiaks of the people of France " leading their king in triumph, and an arbitrary monarch surrendering himself to his subjects," rotisps Ihirke's indignation. Such a spectacle was not the triumph of France, assuredly, nor yet of the National Assembly, forced to let its authors and chief actors go unpunished because equally with the king they were obliged to be submissive to the savage sovereign people. The 6th of October was such a day as " to blot the sun out heaven." It was a day that the better members of the Assembly wished to forget, but which history will not sufFor to be forgotten. " History, which exercises her awful censure over the proceed- ings of all sorts of sovereigns, will not forget either those events or the era of this liberal refinement in the intercourse of mankind." And then he himself briefly re-tells the story of the bloody morning of October 6, and the terrible day and the shameful triumph, in words not easy to forget He 112 ENGLISH POLITICAL PHILOSOPHY guea oil to say that the exalted rank of the personages (the king and queen) and the innocence of their children, he himself "not being illuminated by a single ray of the new- sprung modern light," did not a little add to his sensibility ; finally, he ends the story with a magnificent burst of feeling and rhetoric— the famous lament for the queen and for the vanished age of chivalry, which made it possible for such a queen to suiler such indignities. After this passage, in which he gives the reins to his feel- ings in pathetic and beautiful words, he suddenly restrains himself, and after his fashion passes from the highest flight of rhetoric into the cool and collected state of mind proper to the political thinker. The vanishing of the age of chivalry gives occasion to show the essence of chivalry, what it hud done for mankind and civilisation, and what was likely to be the effect of its disapi)earance. The old sentiment and opinions that were perishing in France were due to the ancient chivalry, whose principle had subsisted down "even to the tune we live in." It had given its character to modern Kurope, distinguishing it from all the States of Asia, and even from those of the ancient world. " Without confounding ranks, it had produced a noble equality," and handed it down through all the gradations of life. It was this opinion " which mitigated kings into companions and raised private men to be the fellows of kings. Without force or opposition, it subdued the fierceness of pride and power ; it obliged sovereigns to submit to the soft collar of social esteem, compelled stern authority to submit to elegance, and gave a domination van(iui8her of laws to be sulxlued by manners." " But now all is to be changed. All the pleasing illusions which made power gentle and obedience liberal, which harmonised the dill'erent shades of life, and which by a bland assimilation incorporated into iMjlitics the sentiments which beautify and soften private society, are to be dissolved by this new conquering empire of light and ruason. All the decent drapery of life is to bo rudely torn oil' ; all the superadded ideas furnished from the wardrobe of a moral imagination, which the heart owns and the understanding ratifies as neces^sary BURKE 113 to cover the defects of our naked shivering nature, and to raise it to dignity in our own estimation, are to be exploded as a ridiculous, absurd, and antiquated fashion." *' On this scheme of things a king is but a man ; a queen is but a woman ; a woman is but an animal, and an animal not of the highest order. All homage paid to the sex in general as such, and without distinct views, is to bo regarded as romance and folly. Kegicide and parricide and sacrilege are but fictions of superstition, corrupting jurisprudence by destroying its simplicity. The murder of a king or a queen or a bishop or a father are only common homicide ; and if the people are by chance or in any way gainers by it, a sort of homicide much the most pardonable, and into which we ought not to make too severe a scrutiny." " On the scheme of this barbarous philosophy, which is the offspring of cold hearts and muddy understandings, and which is as void of wisdom as it is of taste and elegance, laws are to be enforced only by their own terrors. In the groves of their academy, at the end of every vista you see notliing but the gallows. . . . Our institutions can never be embodied ... in persons, so as to create in us love, veneration, admiration, or attachment, which public affections, together with manners, are," as ho profoundly remarks, " required sometimes as supplements, sometimes as corrections, always as aids to law." Institutions emlx)died in persons ought to attach us ; the system of manners of a nation ought to give a relish. ** To make us love our country our country ought to be lovely." Take away ancient opinions and rules of life ; we have no longer a compass to govern us. Europe certainly was flourish- ing in the year of the Revolution. How much ipay have been due to the ancient system of manners it is hard to say, but on the whole their operation was beneficial, he thinks. Our manners, opinions, conversation were traceable to two causes or principles, or rather the result of the two acting conjointly — the spirit of religion and the spirit of chivalry. In the first place, they kept learning in existence, the clergy by profession — it was a part of their function — the nobility by patronage, and this during the din of arms and during the 8 114 ENGLISH POLITICAL PHILOSOPHY Dark Ages, ** whilst governments were rather in their causes than formed." And learning paid back with usury what she received from the nobility and priesthood, " by enlarging their ideas and furnishing their minds." But now learning, as in France, has grown ambitious, and aspires to be muster. But from what was going on in France he prophesies that " along with its natural guardians and protectors learning will be cast into the mire and trodden down under the hoofs of a swinish multitude" — a prophecy that proved all too true during the terrible six years that followed. Still more, even commerce and trade and manufactures, the gods of our ec:»nomical politicians (men like Pitt and Shelburne, who believed in Dr. Price), are themselves ptirhaps but only " creatures," only effects and not " first causes " that we choose to worship. They certainly received encouragement in their infant years from the nobility and clergy, their best patrons and customers. " They grew under the same shade in which learning tlourished " ; and they, too, may decay with their natural protecting principles. In France, at least, they all appear to be going down together — nobility, clergy, learning, arts, commerce. And what a prospect for a once polished and civilised country, in the front of Eurojiean civilisation, — a nation of gross, stupid, ferocious, and at the same time of poor ami sordid barbarians, destitute of religion, honour, or manly pride, jjossessing nothing at present and hoping for nothing hereafter — a condition worse than the condition of man in Hobbes' original state of nature, in the new state of nature with which society was menaced ! § 7 We have here some of the most remarkable of Burke's " rellections," which now, after the lessons of history for a century since liurke wrote, prtjvoke further reflections. It is true that during the Dark and Middle Ages the clergy " kept learning in existence " ; also true to some extent that the nobility patronised it, but only from the later part of the Midtlle Ages down to the time he was writing. And his BURKE "5 eulof^iiim on the age of chivhlry and the feudal system from which it sprang, and the whole system, social and spiritual, of the Middle Ages, is in some respects well deserved. It was a hcaiitiful system, with its ordered, harmonious, social gradations, where command from the superior, carrying with it something of the father's protecting authority and kindness, was promptly met hy a genenms, willing, and almost grateful obedience on the part of all in the scale beneath ; by the love and loyalty which extinguished both envy and fear. And the Church came in beautifully to complete the system, with her comfort and advice in life, her spiritual solace and fortifying rites in the awful hour of death. And learning really was preserved and further cultivated as a pious duty by the best talent of the time that she had carefully gathered into her fold, and withdrawn from the endless din of arms and perpetual turbulence outside the Church and the ^lonastery. The Middle Age was beautiful as all ages of settled faith and certain hope, as all ages of ordered and accepted social organisation, are beautiful. Still, if we compared it with our modern and democratic age there are very large discounts to be made. It was a period of perpetual wars, scanty population, rude and un progressive arts of life, no science, no inventions, barbaric literature, few conveniences or luxuries even for the great. The Middle Ages passed. The Renaissance came, marking the beginning of the new or modern spirit. The human soul outside the Church suddenly seemed to expand. Men discovered they had minds with mental wants; — the desire for knowledge for its own sake, the wish to taste of its fruit forbidden to the laity. The great schism in the Church — the Reformation — allowed to Protestants the right of private judgment in the interpretation of Scripture ; and from these two things — the desire for knowledge and the right of private judgment — arose the spirit of rationalism, of inquiry, of scepticism, of criticism, which has continued and increased ever since, bringing with it infinite good, but which also has shaken the old dogmatic faiths, which has given us the earth with all that it contains — science, inventions, wealth, luxuries, comforts — but which has taken away or greatly changed the. old heaven. Ii6 ENGLISH POLITICAL PHILOSOPHY Assuredly at tho beginning of this period and for long after, the Church, if she favoured learning somewhat, did not patronise either science or philosophy. On the contrary, their votaries were persecuted. The Inquisition and the Stake were terrors in reserve against all who published anything that touched doctrines. Bruno and Vanini were burned, and Galileo had to make his historic recantation. Only in Protestant countries were men of science and philosophers allowed freedom to speculate ; even there it was unsafe where the clergy scented heresy. So that the learning they are credited with patronising by Burke did not include philosophy, moral or metaphysical, nor natural theology, nor biblical criticism, nor Roman law, nor at all literature (such as the drama or poetry), but mainly the I^tin classics, Aristotle's philosophy, the arid scholastic logic, grammar, and rhetoric, perhaps canon law and the writings of tho Fathers. The nobility in France and in England to a certain extent did patronise letters and the fine arts from the Renaissance onwards, and some even condescended to write poetry, just as Lord Bacon, a lawyer, wrote good prose filled with wisdom. But in Burke's own time how was learning or literature patronised by the Chesterfields of the day? How fared Johnson, or Goldsmith, or Burns'? or, in France, Rousseau, Voltaire, or Diderot, the three most eminent contemporary French writers, with the constant prospect before them of banishment or the Bastille if they were not subservient to the king or his ministers, or if their teaching incurred the censure of the Parliament 1 How in Germany, the land of learning, fared its scholars and philosophers, though in Prussia better treated than elsewhere owing to the liberal mind of the Prussian despot and philosopher, Frederick) It is notorious that throughout the seventeenth and eighteenth centuries, wherever there was no special provision made, no endowment, as in the old universities, learning had an ill time of it, philosophy and science a worse, and literature the worst of all. Happily, however, the latter in some of its more marketable forms was beginning to look to another patron than the nobility, to the many-headed Maecenas composed of an increasing reading public. BURKE ri7 A thing that ought to have existed, that once to some extent did actually exist, Burke confounds witli the very different reality in his glorified picture of the "Ancien Regime" in Trance. Had the great Whig nobility of Burke's time really possessed something of the generous soul and tender solicitude for struggling genius which he himself showed in more cases than one, it would have been realised to a considerable degree. In France the great were sufficiently liberal and cultured to admire, to court, and to honour Rousseau and Voltaire. They did little more, and indeed the two illustrious writers were too independent in spirit to solicit patronage or pensions from them or from the Court, which might appear to touch their sense of personal independence or mental freedom. They only wanted freedom, toleration. The Parliament, the Clergy, or the Court persecuted them. There was therefore no reason, but all the contrary, to expect that such men should look with favour on tlie existing ri^'gime, the social and spiritual economy, "f civilised Western Europe. Accordingly they were, in general, enemies alike to both, to the old order both in Church and State, and they set themselves to forge the weapons that were to destroy both. The philosophers made the French Revolution, in this sense that without their writings it would cither not have come at all, or it would have been extended over a longer period and been far less sweeping, destructive, and bloody than it was. And in spite of Burke's dark prophetic picture, learning and letters did not perish. They only suirered for a time in common with all other interests. They are now, in the new order of things which dates from the Revolution, far more prosperous than ever they were before it. The ambition that he deprecates, men of letters and learning have in France been able to gratify more than in any other country. They may now aspire both to political power and wealth as well as to spiritual power. Self-help as well as State-help and a larger poses) supply the place of trade and manu- factures. Tlie leaders and Captains of Industry have become the natural leaders of the people in the new industrial struggles and comi)etitions ; the new aristocracy of wealth, of more imi)ortance than the old feudal leaders, for the simple reason that they are more indispensable. They furnish both the guiding brain and the indispensable requisite of capital. The rich noble can also supply capital if he is sufficiently pro- vident, but he does not help to create it by his labour. When Ihirke wrote, the world was in truth alx)ut to change in many ways : there was to be a political revolution, an industrial revolution, a religious revolution, — the first, portentous and alarming l)eyond all precedent, and attended by a frightful profusion of blood, but beneficent in the sequel ; the second, luipopular and e, the examples cited should suffice to show that discoveriert may be made in morals, if they have not already been made. IJut Burke is chiefly anxious to disclaim moral teachin*; founded on natural rights or '^ rights of man." Hence he hastens to tell us that in Knglaud we act rightly because we act from internal promptings which are alonu natural. We do not act from a theory of the rights of man which may make us dis- regard these inner natural feelings and turn us into the brutes or monsters of the 6th of October. We are living, feeling, human beings, we have bowels of compassion, and we act accordingly. We are not the beings contemplated in their abstract poUtical theory, .** embowelled and filled like stufl'ed birds in a museum with chatl* and rags, and paltry blurred shreds of paper about the rights of man " — a happy image indeed from a rhetorical point of view, but not a convincing argument or a true parallel, becuiuso theories of morals, as well as of public and private right, can be and have been built on these alleged natural rights. He is on stronger and safer ground where he says, ** We have real hearts of flesh and blood beating in our bosoms, ^^'e fear God ; we look up with awe to kings ; with atl'ection U* Parliaments ; with duty to magistrates ; with reverence to juiests; and with respect to nobility." "Why?" he asks. " IJecause the feelings are natural 'y they arise of tlu*mselvcs, and the opposite feelings shown in France are false and unnatural, and tend to corrupt our minds, to vitiate our primary morals, to render us unlit for a rational liberty ; and by teaching us a servile, licentious, and abandoned insolence, to be our low sport for a few holidays, to make us perfectly lit for and justly deserving of slavery for the whole course of our lives." Then follows his famous defence of prejudice, in noUible words that would have delighted his friend Johnson : ** You see, sir, that in this enlightened age I am bold enough to (H)nfesH BURKE 123 tliat we arc generally men of untaught feelings ; that instead of casting away all our old prejudices wo cherish them to a very considerahle degree, and to take more shame to ourselves we cherish them because they are prejudices ; and the longer they have lasted, and the more generally they have prevailewer, that they should be awfully impressed with the idea that it is a sacred trust, and that they are to " account for their conduct in that trust to the one great Master, Author, and Founder of Society." Above all, this is the case where in a democracy they form the collective sovereignty, because in such case they have not the checks that press upon single princes ; they cannot be cut off by a rebellion; they live under no responsibility to one of the greatest controllmg powers on earth, the sense of fame ; as " their own approbation of their own acts looks like general outside favour, passes for fume and good opinion." The sense of infamy is lessened by the number sharing iv public acts, however infamous. A perfect democracy is therefore the most shameless thing, having neither shume nor fear to control it. The people at large cannot be punished without absurdity and contradiction, without defeating the end of punishment, which is the conservation of the people in general. All the more reason why they should never imagine that their mere will, any more than that of kings, in the standard of right und wrong. They ought to feel that " they are us little entitled, and far less qualiticd, with safety to themselves, to use any arbitrary power whatsoever." We muHt not, therefore, " under a false show of liberty," exercise an lumuturul inverted domination, by tyrunnicully exacting from tliose who must otticiate in the State for them *' an abject submission to their BURKE 129 occasional will ; cxtinguisliing thereby, in all those who serve them, all moral principle, all sense of dignity, all use of judg- ment, and all consistency of character, whilst by the very same process they give themselves up a proper, a suitable, but most contemptible prey to the servile ambition of popular sycophants or courtly flatterers." The weak places, and the besetting sin of democracies, are hero admirably shown. And there is no cure for this, he thinks, save religion. Without religion, this "lust of selfish will" cannot bo cast out. IJut under a duo sense of religion "in their nomination to office, they will not appoint to the exercise of authority, as to a pitiful job, but as to an holy function ; not according to their sordid selfish interest, nor to their wanton caprice, nor to their arbitrary will; but they will confer that power (which any man may well tremble to give or to receive) on those only in whom they may discern that predominant pr<)portion of active virtue and wisdom, taken together and fitted U) the charge, such as in the great and inevitable mixed mass of human imperfections and infirmities is to be found." This also is admirable, and admirable in its allowing for human weakness, of which only the statesman and man of wide knowledge of life, as distinct from the devotee or the theorist, would think. Wisdom and virtue should be chosen, but do not expect the perfection of either. But, on the other hand, is it not i)erhaps expecting too much from the democracy to suppose they would always act from such high religious feelings? though they certainly should choose the fittest and best, even on the grounds of morality and patriotism, as the best for the nation as a whole, including themselves. One grand reason why ho thinks the State and the laws are consecrated is, lest the existing generation of men, the " tern* l>orary possessors and life-renters," should look on themsplves as full and absolute owners and masters of the total social estate and mansion, having unchecked power to commit waste on the reversionary estate, "by destroying at their pleasure the whole original fabric of their society, and hazarding to leave to those who come after them a ruin instead of an habita^ tion," and teaching these same successors to repeat the ill 9 I30 ENGLISH POLITICAL PHILOSOPHY example; by which *' unprincipled facility of changing the State as often, and as much, and in as many ways as there are floating fancies or fashions, the whole chain and continuity of the commonwealth would be broken. No one generation could link with the other. Men would become little better than the flies of a summer." He apprehenils that jurisprudence would be neglected, that there would be no certain laws, that property would be insecure, that there would be no stability in the appointment of function- aries, nothing certain to rest upon in training the rising generation for their future careers. "The science of juris- prudence, the pride of the human intellect, which with all its defects, redundancies, and errors, is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns, as a lioap of old exploded errors would be no longer studied. Personal self-suHiciency and arrogance, the certain attendants upon all thase who have never experienced a wisdom greater than their own, would usurp the tribunals. Of course, no certain laws establishing invariable ground of hope and fear would keep the actions of men in a certain course or direct them to a certain end. Nothing sUible in the modes of holding projKjrty or exercising function could form a solid groinid on which any parent could speculate in the education of his otfspring, or in a choice for their future esUiblishment in the world. No i)rinciples would be early worked into the habits. ... No part of life would retain its acquisitions. Ikrbjirism with regard to science and literature, and unskilfulness with regard to arts and manufactures, would infallibly succeed to the want of a steady education and settled principle ; and thus the commonwciilth itself would in a few generations crumble away, be disconnected into the dust and powder of individuality, and at length dispersed to all the winds of heaven." And no doubt this is what would result under the 8upi>08ed tampering with laws, and esi)ecially fundamental ones, such as those relating to property. The conclusion is a rigorous deduc- tion from the principles and assumptions. But before the disastrous consummation, people would discover, and discover BURKE 131 Boon, wlicrc lay the dangor, and avoid it. And this i« what in fact happened in France during the five following years. The rulorfi in France did tamper with property, so far at least as to confiscate without compensation the property of the nohles and clergy ; they did change the modes of appointing to func- tions J they did change many laws, and make new and some- times strange ones, and society in France got into a terrible pass in consequence, though the people managed somehow to live in it for near ten years, though very badly indeed. As Taine has shown, they did so chiefly because thoy carried on success- ful wars, and because they did not venture far in their attack on property. They did not attack the principle. They did not plunder the rich as such, but only those who were enemies of the Revolution. Nevertheless, society lx?came thoroughly ilisorganised, and when things were looking very liopoless it was discovered that a dictatorship, the absolute rule of one strong man, and a return to the old order, so far as regarded private law, was necessary. Property had merely changed hands from the noble to the jKiasant cultivator, in whose hands it was confirmed. The science of jurisprudence was again cultivated, and the Code Napoleon, which makes no breach with past principles of law, was the great result. r»ut according to Burke, to avoid the possibility of rash changes in the laws or the constitution, the State has been con- nerratedy so that none should dream of beginning a reformation by a subversion, but, on the contrary, that reformers should approach the faults of the constitution "as the wounds of a father, with pious awe and trembling solicitude. By which wise prejudice we are taught to look with horror on those children of their country, who arc prompt rashly to hack that aged parent. in pieces, and put him into the kettle of magicians, in hopes that by their noxious weeds and wild incantations thoy may regenerate the paternal constitution, and renovate their father's life." There is a certain truth in this, and Hobbes, as we have seen, has applied it, as well as the meta- phor here used by Burke, to the actually existing form of government; but still we know that a' belief in the general Bacrodness of a goverumont or constitution must not be turned 133 ENGLISH POLITICAL PHILOSOPHY into an argument to prevent salutary reform in them, rendered necessary by the general course of social evolution, and the altered relations of classes in the communitv. § 10 Civil society, according to Burke, is a divine institution, and not a human invention. For " without society man could not by any possibility arrive at that perfection of which his nature is capable, nor oven make a remote and faint approach to it. He, the Divine Author, gave us our nature to be perfected by our virtue. He must therefore have willed the means of its perfection. Ho therefore willed the ^tate, and He willed its connection with Himself, the source of all perfection." We have here the old idea of Cicero,^ only more clearly and fully stated, the divine origin and nature of society, of the State, and of law which binds society together ; which is also substantially the view of Hegel, who sees in law the characteristic product ns well as the regulative agency of the State, the " evolution of the Deity," and in the chief political institutions the divine reason, the "Idea" crystallised and objectified. The State being thus divine, it is fitting men should acknow ledge it in their corporate capacity; and in the other institution, the Church, we in ett'ect make ** oblation of the State itself " to its great author and source " as a worthy oll'ering on the high altar of universal praise " ; and this is duly " performed, as all public acts are performed, in buildings, in music, in decoration, in speech, in the dignity of persons, according to the customs of mankind, taught by their nature; that is, with modest splendour, with unassuming state, with mild majesty and sober pomp." "Fur these purposes they appropriate i)art of tin* national wealth of the country to the supiKjrt of the Church. The * From whom Burke quotes t "Quod llli principi et pnopotenti Deo qui oinnem hunc mundum regit, nihil corun) quw quideni fiaiit in terria Bcceptius quam coucilia et oerstition ; a crime against humanity, like the attempt to destroy one of nature's forces, like steam or electricity, which are beneficent agencies if properly directed. In the wealth, the discipline, and the habits of these monastic bodies there was a force that true statesmen could have turned to better account than by making the monks idle pensioners, and realising their revenues by a spendthrift sale. There follows a long and acute criticism of the new constitu- tion, in which he finds little to praise and much to condemn. But it was urged that under it liberty was restored and assured. To which Burke replies, it is easy to give liberty. "It only requires to let go the reins." To make a government, too, is easy. *♦ Settle the seat of i)Ower, teacjh obedience, and the work is done." But to combine the two things, to form a free government, is far from easy; to duly combine the opposite elements of liberty and restraint requires great ability, which he thinks has not been shown by the National Assembly, or if the memliers did jiossess ability it had been of littler use to them in their peculiar circumstances, which tempted them to outbid each other as in an auction for pi»pidurity. Tliey have thus become the flatterers of the people instead of legislators, and instruments in place of juopular leader is BURKE 141 oliligcd to become active in propagating doctrines, and establish- ing powers, that will afterwards defeat any sober purpose at which he ultimately might have aimed" — deep and wise and all too prophetic words, which received literal and terrible fulfil- ment during the next few years of the Revolution. Rut did the Assembly tlicn effect no good? Some they did, because thoy who destroy all must necessarily remove some grievances ; and when they change all, by mere good luck they may introduce something good. But to deserve any credit for the good, it must be shown that there was no other means to it but such a total revolution. And this cannot be shown. Every- thing good really done was " either in the cession of the king voluntarily made at the meeting of the States or in the con- current instructions of the orders. . . . The improvements of the Natiect' 14^ BURKE 143 ing tlio Crown, the Constitution, the Aristocracy, the House of Commons, their attack on the law of primogeniture, — "the very condition of an aristocracy," as Burke, tliinking only of a landod aristocracy, declares. To none of them will he deign to reply. He merely notes their New Whig principles, presumably the same as those of Fox and his friends. His object is not to refute them, a work which he disdainfully leaves to others. There is, however, one topic, a central and vital one, in regard to which he asks excuse for dwelling on it beyond his design. This is no other than the doctrine of the Sovereignty op the pKorLE, and on this important dogma we have important remarks and a criticism much to the point, which in a measure completes his general theory of society and of i)olitics as given in the Reflections, At least there is nothing more of equal weight and importance from the scientific point of view, however Aiagnificent and unsurpassed the rhetoric of his thundering philippics in the Letters on a Regicide Peace, "The Xew Whigs," he says, "held that the sovereignty, whether exercised by one or many, did not only originate from the people (a position not denied nor worth denying or assent- ing to), but that in the people the same sovereignty constantly and inalienably resides. " The people in forming their commonwealth have by no means parted with their power over it. This is their impreg- nable citadel when pushed by the battery of laws, usage-s, and positive conventions.* Are we to deny to the majority of the people the right of altering even the whole frame of their society, if such should be their pleasure 1 They say they may change from a monarchy to a republic to-day, and to-morrow . back again» . . , "They are masters of the commonwealth, because in substance they are the commonwealth. The French Revolution, say they, was the act of the majority of the people ; and if the majority of any other people, the people of England for instance, wish to make the same change, they have the same right" " Just the same," replies Burke, " and that is none at all." For being given any sort of existing constitution " settled upon 144 ENGLISH POLITICAL PHILOSOPHY BOiuo compact, tacit or oxpross/' there is no power to alter it except the consent of the parties, that is, in the case of a monarchy (absolute or limited), unless througli the consent both of the monarch and the subjects, without a breach of the covenant, that is, a breach of faith and duty and trust. The people, as a whole, are born subject to the covenant, by the fact of being born in the country j the king also, when he ascends the throne and swears to rule according to it. The majority have no right to repudiate their engagements ; if they do, they teach their governors to do the like. *'How to tie men by civil constitutions, in the arbitraiy exercise of power and by moral instruction in the desire of it, is the dilficult problem for true statesmen and legislators and first founders of SUites. Salutary check and prudent direction of power is not to bo expected from the multitude; hence no legislator has ever willingly made the people rulers, because, placed in their hands, power admits of no control, no regulation, no steady direction whatsoever. The people are the natural control on authority ; but to exercise and to control together is contradictory and impossible." Make the people sovereign, and ho thinks a bad exercise of power cannot be prevented by any check or constitution, so the repression of the desire for power is still more difficult. A democracy is the fruitful source of ambition, one of the natural, inbred, incurable distempers of such a government, and the more the more powerful it is. Our duties to civil society (not the constitution) are not the creatures of our will, though civil society in many cases originally was due to the voluntary acts of men. The continuance of the society depends on a pbumanent standing covenant, cu existing with the society, and it attaches on every individual without any formal act of his own. The moral duties of parents and children are obligatory from the relations themselves, without any consent on their part ; in like manner, in the relation of citizens to our country and society, wc have duties. These are all compulsory on us, especially if we believe thoui relations of divine origin. These are his opinions, from which he concludes that no man BURKE 145 or men have the right to free themfielves from the civil obliga- tions and the primary engagement which a -man contracts by being born into a community, just as much as he contracts an obligation to his parents by being born of their bodies; the only exception being the case of necessity out of and above all rule. The place, the relation determines the duty. He allows difficult cases may arise. Duties may cross. Which, then, to obey 1 One such difficult question was then much dis- cussed. The people having parted with their original power, having discharged themselves of it by a habitual delegation, can no occasion possibly occur which may justify the resump- tion of iti This he thinks a difficult question, but hardly anything could justify such resumption on the people's part, which would not equally justify a dispensation with any other moral duty, "perhaps with all of them together."^ But it is not difficult to deduce the dangerous consequences of such a |)ower of resumption. And "the * practical consequences' of any political tenet go a good way in deciding upon its value." Political questions do not relate to truth or falsehood, but to good or evil. That is true which produces good, false which brings evil.2 Regarded from this point of view, that is, considering the consequences of extending or limiting the political power of the people, we should first know what we mean by the PEOPLE. . In tho state of rude nature (Rousseau's state of nature) there is no people. Tho idea of a people is an artificial idea, tho idea of a corixjration, of an association. It depends on tho terms of associating. In a given case (for it was not the same in all cases) it is " collected from the form into which the particular society has been cast." Any other is not their agreement or covenant. If men break up the original compact which gives its corporate form to the State, they are no more a people ; they ^ This is fallacious, as moral niles remain even though the people rite against and overthrow their government, as they have done in France four times since Burke wrote, namely, in 1792, 1830, 1848, 1870. ' Hero we have the test of Hume and Bentham applied ; the good or evil that may result, 10 146 ENGLISH POLITICAL PHILOSOPHY are vague loose atoms, with all to begin again (as in France). In such a case the majority has no right to bind the rest. The power of 80 acting must be grounded on two assumptions — first, that all agree to form an association ; second, that a// agree to be bound by the decision of the majority. They might not have so agreed ; in some cases more than a mere majority is required for the validity of their corixtrate acts ; sometimes less, sometimes all. It is matter of convention. Decision by a majority is not a law of nature. That a majority shall stand for the whole is "one of the most noted fictions of positive law." The mind more readily accepts one or a few to decide for all than the vote of a victorious majority, because the smaller number may be the stronger forcet and may have all the reason against mere impetuous appetite in the majority. But if men dissolve their civil society any conventional rights of the majority are gone ; an individual may remain so. Any number who agree may form a separate and wholly independent state.^ In a disbanded society a majority has no rights, so in a civil society its special conventions determine what it is that con- stitutes the " people " ; but neither the original nor any later compact (whether in Franco or England) has affirmed that a mere majority told by the head is the acting peoijle. And there is just as little of utility or |K)licy as there is of right in the maxim that the will of a mere majority should bo law. That men act with the weight and character of a people we must suppose such a state of habitual social discipline and organisa- tion that the wise and more expert and rich conduct, and, by conducting, instruct and protect the weaker, less instructed, and poorer sort Without this discipline and sulxjrdination in the many, men are not in civil society. Given a variety of condi- tions and circumstances, given a constitution of things from which inetpmlity of conditions result, the wiser and richer for the benefit of the rest should judge and rule. ^ This is not quite the doctrine of Kant, who says that a recalcitrant individual may be forced into a civil society ; or of Hobbes, who says "that if the majority agree to form a society the minority should agree or be justly destroyed." BURKE 147 Then follows Burke's remarkable nm\ interesting theory of a "natural aristocracy," its conditions and varieties, and the several circumstances and causes which originate it : — *' To be bred in a place of estimation ; to see nothing low and sordid from one's infancy ; to be taught to respect oneself ; to be liabituated to the censorial inspection of the public eye ; to look early to public opinion ; to stand upon such elevated ground as to be enabled to take a larger view of the widespread and infinitely diversified combinations of men and affairs in a large society; to have leisure to read, to reflect, to converse ; to bo enabled to draw the court and attention of the wise and learned wherever they are to be found ; to bo habituated in armies to command and to obey ; to be taught to despise danger in the pursuit of honour and duty; to be formed to the greatest degree of vigilance, foresight, and circumspection in a state of things in which no fatdt is committed with impunity and the slightest inistakes dmw on the most niinous consequences; to be led to a guarded and regulated conduct from a sense that you are conT«idored as an instructor of your fellow-citizens in their highest concerns, and that you act as a reconciler between Goicturc liurke has drawn of them. The people should respect their temporal and spiritual leaders, and they will do so if they deserve it. And the government should not oppress ite pcoplo with heavy and exhausting taxes, in addition to the heavy exactions of feudal superiors, whether nobles or clergy. In such a case the government is not loved, and the nobles and clergy appear rather as robbers than leaders, and as wolves than shepherds. The state of things in England was not so bad, but far from perfect, when Burke was writing. The landed aristocracy largely ruled the country. There was much corruption in high places and in low places. Moreover, it was a haughty and exclusive aristocracy, jealous of the rising moneyed aristocracy, and with no belief in an aristocracy of merit, save when an occasional I^w lord (like Thurlow), or spiritual peer admitted into their ; ranks, extorted their respect. The fact is, tliere was at the time two other kinds of aristocracy pushing to assert their natural position in society and to rccniit or to strengthen Burke's old aristocracy; rivals at first, but in the end allies, without which the former might have found their position much loss 150 ENGLISH POLITICAL PHILOSOPHY secure in the century that was to fuUow. And in spite of Burke there is a truth in the dogma of the sovereignty of the people, as well as in the mother doctrine of equality. This truth, as respects the former, we have disengaged, and made it etticacious in our constitution after three revisions (1832, 1867, and 1884). We have solved the perplexing problem of how to give the i>eople, the mass of electors, consisting chiefly of the labouring classes, their due share of political power without producing anarchy. We have given prominence to the demo- cratic side of the constitution, without visible danger to the fun- damental institutions of society, which Durke thought impossible, and which perhaps when he was writing was impossible. How has it been done ? By making use of time, the great innovator, by proceeding slowly, by taking only one step at a time and at the seasonable time, by proceeding on the original model and improving it. We have successively widened the suffrage by lessening the qualifications of the electors, as by doing away with the money qualification of members we have widened their range of choice of candidates. We have thereby embraced within the constitution over seven millions of voters. These people, if they cannot directly make laws or lay down a policy, can choose individual representatives, and can to a large extent impose their wish and will on them, supi)Osing their wishes not coincident. If a member disagrees or diverges far from the general will, they can change him and take another, whose will and wish more nearly agrees with their own. They are thus partly sovereign, partly subject to the general will, the will of the majority, in which everyone, as it is a shifting mass, may find himself, as regards some matters. They form in this sense the 'Apolitical sovereign," as Professor Dicey calls them. But the House of Commons, embracing their representatives, is likewise sovereign, the legal sovereign, and the real sovereign, because it is the most iKJwerful of the three Estates of the Realm, and the will of the Crown and House of Lords finally concurs with its will if sufficiently manifest, just as it coincides finally with the will of the people. But this will is usually formed for the iieoplo, sha})ed by the will and intelligence of BURKE 151 tlic wiser, better educated, and even iho richer part of the comniiinity j and tliis through the press, tlie platform address, the Rpcech of party leaders in Parliament, sometimes even by their spiritual guides. The will of the people thus informed and thus i>ersua(led is really guided and governed by the wiser will of the more influential and enlightened classes. And necessarily so : the many cannot think for themselves, and they have only the choice between these classes who are their proper leaders, and demagogues and flatterers who will mislead them for their own ends. They do not in this country much trust to the latter sort, and thus it comes about finally that both the people and their governors exercise their will in legislation; l)ecause their wills usually coincide. The people's will is really the will of their superiors, adopted by the people and reflected back as if independently formed. And to shape this will for , the people, while pretending to defer to it, by various devices, perfectly fair and even necessary, is the whole mystery and secret of successful popular government. One thing only being borne in mind : that a people's prejudices are to bo considered as the part of its will that is constant, that cannot therefore bo shaped or controlled, and can hardly be moved by even a leader of the greatest genius. On the contrary, this, like national character and national genius, is the part of. the people's will that must be accepted and made the best of, like one of nature's forces ; but which, like natural forces, being accepted, may be turned to important and beneficent ends. Here nature, in the shape of unchanging human nature, as in the case of national or race prejudice, traditional religious belief, even class preju* dice, is only to be governed or controlled by obeying her. And here the people imposes its will. Here the leaders must follow, and can only control by acceptance. And as to the doctrine of equality it is clear, too, that there is a very considerable equality of intellectual and moral and l»hysical qualities amongst men by nature. The people of average intelligence, average morality, form the great majority. Give them all the same education and the same dress, and there would be little difference in their conversation, general appear- ance, or apparent intelligence ; and hcnte it might be inferred ISa ENGLISH POLITICAL PHILOSOPHY there ihould be a general equality in material goods and endow- ments, as well as in political functions and powers. But the argument only applies to the generality, the majority, not to the minority. In every department there are excej)- tional men though few; these are the natural leaders. The general is better than the common soldier, the inventor than the ordinary artisan, the able man of business than his clerk or *' hand " j,the judge is the superior man selected amongst his learned brethren, and the bishop the ablest of the clergy. And there are decisive reasons even against equality of property amongst the majority, who are tolerably equal in intelligence and moral character. There is the absolute impossibility of it, the injustice of it, the poverty it would bring on the majority if attempted to be enforced. All which having been found out by all civilised nations, property and laws of property, recognising inequality of property, have invariably come into existence. The inequality is best defended on grounds of its immense utility, as a spur to industry and enterprise, to the creation of wealth, and because in order to increase it they must part with it to the labourers, and again, because those who own the larger masses of it cannot consume much of it themselves, they must distribute it to others. So that the principle of inequality is good, though, like everything good, it may be abused and carried to extremes, as it was in France before the Revolution. There is the further defence for the inequality of wealth, that it is quite compatible with a rough equality of happi- ness. The man with j£ 10,000 a year is not ten times as happy as he who has £1000, perhaps not nmch happier than he who has £50 a year, though few believe it. Adam Smith an«l many very wise int-n honestly and thoroughly believed it,* the former carrying it even so far as to say that ^ Shakespeare also appears to have thoroughly helicvcd hi nature's levelling in Hpitc of wealth or pomp or rank. Sec the reniarkalile words ho puts into the solilo(|uics of two of his kings, Henry iv. and Heiuy v. So also Burke himself thinks that the distribution of happiness has no connection with the distriltution of rank and wealth. Sec his remarkable words cited, aKju'u, p. 134. /? / BURKE 153 the beggar, who suns himself on the roadside, and who has got rid of the incommodious and illusory sense of dignity, enjoys a happiness the monarch with multiplied appliances has missed. This is one of (mother) nature's strange but happy paradoxes. There is tolerable equality of brain, of lx>dily powers, and of happiness and misery, the great final consideration ; or, admitting some inequality of happiness, the rich and great are more likely to have the lesser share of it. Why then strive for equality of goods which would soon prove insupportable, and which, even within the short time it compulsorily lasted, would soon become equality of poverty 1 But in France, from the teaching of Rousseau, and the un- justifiable inequalities that existed, the watchword of " equality " had gone forth ; equality of fortune, or nearly so, equality of titles and honours — all to be simple citizens ; and accordingly ^the nobles were stripped of their revenues and titles, and the richest were marked out to be mulcted. Burke saw and dfeaded what was coming in France. He did not foresee so clearly what was to be the course and the end of the new rising in favour of equality. He appeals to history. When the multitude throw off their natural allegiance to their natural chiefs, and by outrage and violence rob and plunder, they are rebels, he says in the Appeal^ and may as such be fought with and subdued. Such insurrections have been l>cfore, the "Jacquerie" in France in the fourteenth century, and the rising of the lower commons in England under Wat Tyler and John Ball. These also preached equality, and, the better to lay hold on the memory, condensed their doctrine into rhyme : " When Adam delved and Eve span, who was then the gentleman?" — the inference being that that primitive good time should be restored. " But," he says, " these poor people were not reasoned but beaten out of their lights." The latmt I'lirty on tliv i«utof the Whig arintoeraey uiul an ntany of the iico])lu as they euuld iiillueiice. What liad occuneil in France was a rising of the whole people and middle class and a part of this aristocracy, but as it was a rising largely against aristocratic abuses it would bo absurd to expect the aristocracy to be at the head of the movement. ■■' Sec also supra, p. 148. BURKE !55 far as political rights aro concerned they are ciphers. But give votes to all adult males except paupers, and then it would follow that the majority has the political right to change the government at pleasure, provided a majority agree to do so and are resolute, however unlikely it is that such will be the case. Burke, however, would test the principle of the right of mere numerical majorities to change the government at pleasure by its consequences. And here he adopts, as he frequently does, the new method of Hume and IJentham, which brings all laws and institutions, forms of government, and political principles to the test of utility. If, he says, a majority can change the government as it pleases, any one person has the right to originate the idea of a change — the thing that Hoblwjs regarded with abhorrence and- would prevent by penalties. , Su(!h a one must begin by a secret conspiracy (unless the utmost freedom of discussion is allowed on the constitution and the measures of those who control its working). And thus wo should have a series of conspiracies and seditions, sometimes ruinous to their authors and always noxious to the State. But the real reply comes from another quarter: that though the majority of voters in England have the legal power of changing the constitution if they acted irrespective of their leaders, they are not likely to wish largely to change what works well. They will only change slowly, and they are very unlikely to wish for a change not agreeable to their social chiefs and sujwriors, to whom they are willing to leave all initiative. For their own good they desire to follow their leaders and not to combine together for jwlitical action without them, save with reference to questions of wages and work. The right of the sovereign people to do what it pleases it now has; it is perhaps a dangerous right The one safe- guard is that the -will of the people is to be discovered in the more enlightened will of the natural aristocracy j that their will more and more coincides with that of the Members of Parliament, and that whore it does not altogether coincide, as IS6 ENGLISH POLITICAL PHILOSOPHY on labour legislation, impartial and enlightened third persons may find a via media acceptable to both. The people are not likely to desire further change in the constitution, the claims of democracy having been fully conceded. They are not likely to wish to attack property, though they may desire some revision in some of the laws of property and contract, and some special legislation affecting their own interest, where existing laws are unjust or unfavourable to it. The remainder of the book is devoted to sounding an alarm, ^nd to a rapture on the hidden marvels and beauties of the then British constitution, on which the New Whigs, who spoke very contemptuously of it, would lay irreverent hands. There is danger, he thinks, to the constitution and to society, not from the ability of the writings of these English Jacobins, but from their restless energy and their fanaticism in the new faith of the rights of man. The discontent which they mani- fest — not from any real grievance, but from their admiration of a particular form of government — is all the more formidable. But their writings, he complains, are not condemned, while his book is. There is real and great danger, and all the greater because they praise the worst things in the Revolution, and what they praise they would realise in England if they got the. opiwrtunity. They are wild in their ideas, certainly ; but men with the wildest ideas have done the greatest mischief, antl they are the fittest beginners of all great changes. The danger from them may be distant, but they will get their chance, because discontents nwy arise under the best o{ gi)vernments. When such a time comes the dangerous principles now sown will shoot up in full luxuriance ; then will be seen the ell'ect of their pernicious teaching of contempt fur the Jhitish consti- tution, and for all old institutions, as results (»f ignorance or worse ; their teaching that all prescriptive governments are of the nature of usurpations (that is, government that rests its defence on the fact of long continuance) ; then will appear the effects of presumptuous indocility in matters of political theory, BURKE 157 tlie danger of separating religion from the State, and of teach- ing tliat we are under no moral obligation to our established government. Nor will it suffice to say that the great number of men of great hereditary estates and influence will prevent the levelling that has taken place in France. It may, on one condition ; if they get alarmed in time ; otherwise their great properties will be the cause of their danger. Instead of con- ferring power and influence on their possessors they will excite rapacity, as in France. I»esides, rich and turbulent men (like the Duke of Orleans in France), through ambition or resentment, may adopt the new doctrines and ideas; and persons of wealth in insecure times will go to the supposed winning side, as a matter of calculation. The influence of two such men as ^Ir. Pitt and Mr. Fox could frown such dangerous political opinions out of the kingdom or drive them underground. Then follows his oulogium on the Ih-itish constitution as it then stood, fortified by a testimonial in its favour from Montesquieu, who, however, derived his knowledge, as Gneist tolls us, more from party pamphlets than from a study of it himself or knowledge of the actual forces, often corrupt, by which it was worked in practice. The fact was, Burko saw a danger to his superstitiously beloved British constitution, under which the great noble families and landed gentry ruled England. lie apprehended danger to their properties if this constitution was tampered with in a democratic direction, It was no longer dread of a change which would increase the influence of the Crown ; it was a reform that would increase the power of the people and the rich classes outside the landed gentry that he feared, and he thought that any change might go too far and involve attacks on landed property ; and probably it would have been an inopportune time for parliamentary reform. But it was hardly yet time to interfere with freedom of speech and discussion on political matters or with the propagation of opinions in favour of a reform in the constitution, for the reforming party in England was not numerous. The ruling classes were very strongly 158 ENGLISH POLITICAL PHILOSOPHY entrenched, the farmers and agricultural labourers, the back- bone of the country, were conservative and contented. It was rather in Ireland and Scotland that discontent existed. And when real discontent arose again thirty years later, the danger which he signalled did not arise. The constitution was reformed by later AVhigs and Radicals, and landed property was in so little danger that a Conservative government wjis within a few years again in power even under a reformed Parliament. When Burke wrote the Reflections he was imperfectly acquainted witli the causes, nature, and tendencies of the Revolution. As the astounding drama unfolded itself act after act, he began to take a more accurate estimate of it, but without fully comprehending it even to the end of his life. And no wonder, considering the contrary estimates and contrary interpretations of it, even down to our own days. At first he is disposed to class it with seemingly similar phenomena of history; with the Anabai)ti.st terror of the .-iixteenth century in Germany ; with the levelling movement of the time of the Commonwealth ; then in The Appeal from the New to the Old Whvjs with the French "Jacquerie" of the fourteenth and fifteenth centuries, and the rising of the lower commons in England under Wat Tyler and Father John Bull. These, however, had all been suppressed in blood, and ho anticipated at first a similar ending of the new French rebellion. But at tlio end of the same year (December 1791), in his Thoughts on French Affairs^ he began to perceive that the Revolution was different from all previous risings, rebellions, and revolutions, in that it was a revolution of doctrine and theoretic dogma, and so far akin rather to the Reformation than to other political revolutions. And, like the Reformation, it had in every civilised country an enthusiastic party in sym- pathy with its dogmas—people who ardently desired its success in France, and who looked forward to tlie success of the like system in their own country. BURKE 159 Ho repeats the fundamental dogma or principle, namely, that "tlie majority, told by the head of the taxable people in any country, is the perpetual, natural, unceasing, and inde- feasible sovereign ; that this majority is perfectly master of the form as well as the administration of the State, and that the magistrates under whatever names they are called are only functionaries to obey the orders (general as laws, or particular as decrees) which that majority may make ; that this is the only natural govornnient, and that all others are tyranny and usurpation " ; and this is certainly as clear and accurate a state- ment of the essence of the doctrine of the sovereign people as he anywhere gives. There follows an interesting list of the English sympathisers, which he says embraced "most of the dissenters of the three leading denominations, besides all dissenters in character, temper, and disposition, — that is, all the restless people of all ranks and parties, Whigs and even Tories; the whole race of half-bred speculators; all the atheists, deists, lind Socinians ; all who hate the clergy and envy the nobility ; a good many among the moneyed people; the East Indians almost to a man, because they are grieved that their present importance does not bear a jiroportion to their wealth." The Revolution had taught many things, — in other words^ had shown that it was a new thing in many ways ; amongst others that the ** hitherto peaceable and even timid part of society "— the moneyed men, merchants, tradesmen, and men of letters — may subvert a government, such having been the leading actors in the drama of the Revolution; and the reason assigned is that as wealth increases and circulates, and news and letters become more diffused, those who diffuse the money and the intelligence become more and more important, that is to say, the moneyed man and the journalist (as by ' men of letters ' he here chiefly means the journalists, though elsewhere he includes in the clastic term those now distinguished as men of science, like Bailly and Priestley, also philosophers like Rousseau, Voltaire, and Condorcet). To those classes the Revolution offered for the first time a career of ambition — all places in the State, in the army, in the system of civil offices of every kind ; in fact, i6q ENGLISH POLITICAL PHILOSOPHY u " bribe great beyond example in • the history of the world was held out to them — the whole government of a very great kingdom." Nor let it be supposed the same might not occur in England ; because merchants and manufacturers enjoyed higher social consideration in England. In a country like England " wealth liow in the making, and precarious in its tenure, can never rank first, or even near the first. ... At no period in the liistory of England have so few peers been taken out of trade, or from families newly created by commerce. In no period has so small a number of noble families entered into the counting-house." He concludes : " That envy and ambition may bo by art and management and disposition as much excited amongst these descriptions of men in England as in any other country \ and that they are just as capable of acting a part in any great cliunge." These are significant words, which give rise to some rellectionH. If the rising rich class in England was ambitious of more political and social influence, nothing could be more natural, as wealth had always been, especially in commercial countries, one, of the causes of aristocracy, and England was becoming more and more a commercial as well as a manufacturing country, as Burke knew. That these classes were discon- tented pointed to a grievance, and the moral that we should rather have expected would have been the advisability of removing the grievance by an improvement in the constitution than urging on a war with France for fear her example should spread to England, especially when in France this important class had still less power than in England. But tliis his belief in the perfection of the English constitution forbade. It is, however, a remarkable thing that the classes here referred to by Burke, though greatly increased in numbers and riches, were the very classes who were the leaders in the Reform Bill a^'itiition, and were the means of bringing about, forty years later, that revolution in our constitution which both widened the suffrage and made themselves the chief power in Parlia- ment. BURKE l6i It is also very remarkable that this very class referred to by Ihirke is now, and for a considerable time Ima been, the most powerful and important class of all. It has been increasing in inflnonce, while Burke's favoured class, the permanent landed gentry, have been comparatively losing influence, and in France they have lost it altogether. Nor is this great aristocracy of wealth by any means revolutionary either in England or France. In France they form, in fact, the select of the Bourgeois^ against whom the advanced section of the working classes and the Socialists have declared war, but whose position as the savers and accumulators and controllers of capitjd, and the finders of employment and wages for laboiirers, and the skilled and intelligent directors of their lal)our, is really more secure in modern society, because they are more necessary than any other class. The dissatisfaction of the aspiring middle class excluded from all jwlitical power was one of the great causes of the Revolution. It had no political power; as a consequence it had small social consideration, and the like was true, though to a much less degree, of the same class in England. It was true of all civilised countries, except the youngest, the United States. It was no wonder, then, that this growing class of rich men, great employers, rich merchants, opulent tradesmen, should be dissatisfied everywhere with the governments which exchided them, and in sympathy more or less with the prin- ciples of the Revolution. In France, such men sympathised with the principles at the beginning, and until they were marked out for spoliation equally with the nobility and the clergy, by the dogma of equality and the sovereignty of the ])eople applied in practice, and by the words of leading revolu- tionists like St. Just and Robespierre, after which they merely looked for a government that would maintain order and protect proiwrty. Later on, in Letters on a Regicuh Peace^ lUirke refers to what was perhaps the deepest of all the causes of the Revolu- tion, when he describes "Jacobinism" as "the revolt of the enterprising talenti of a country against its property." This is an exaggerated and inaccurate statement of a deep truth. The i6a ENGLISH POLITICAL PHILOSOPHY disconteut of talent, kept back by poverty, and afforded no career, was, if not one of the main causes of the outbreak, »t least one of the principal causes of the rapid violence of its course, and of its success in France, as well as of the extraordinary success of the French arms abroad. iJanton, the ablest statesman, and the chief planner and actor in the great critical days of the Revolution, was a poor and struggling advocate when the Revolution broke out. Vergniaud, the leader of the Girondins and the founder of the Republic, was in like manner a lawyer of limited means. Hoohe, the greatest military genius next to Bonaparte, was a sergeant in the old army, and could aspire no higher. The like was true of Pichegru and Jourdan, two other great generals of the Revolution. Even Bonaparte himself, in ordinary times, would have remained a poor officer of subordinate rank. Danton ami Hoche, and many more of this natural aristocracy and latent men of genius, threw themselves with ardour into the Revolution. They speedily became leaders. As such, they employed their abilities, and to some puriwse. The internal revolution, and its anomalous and audacious course, was determined by such men, — above all, by Diinton, a veriti\ble king, as Taine calls him. In the critical days on the frontiers such men conquered the Austrian, the Prussian, and the English genemls. The soldiers had the revolutionary enthusiasm, and the generals genius and youthful auilacity. It was discovered that, outside the hereditary aristocmcy, iu the ranks of the people there were the ablest military kmders, so that there was no longer any function reserved for the old Noblesse, for which they were pre-eminently fitted. The exclusion of talent from careers, or rather the want of any jirovision for it, was the fatal i)olicy of the old r6gime,^ for which it paid very heavily. It was a just * Dantoii hiiiiHulf had noted it. It was a great mistake, he said, for the Ancicn Riyime to provide men like himself with a liberal education by means of exhibitions, without going further. "La revolution est arriv«^e ; moi ot tons ceux qui me ressemblaieut, nous nous y sommcs jet<^s. L'ancien rdgime nous y a forces en nous faisant bien Clever, sans ouvrier d^buuch^ 2t nos talents" (Taine, La Ji^vuiution, vol. ii. p. 3C}. BURKE 163 cause of smothered but widespread iiidignfttion and heart- burning, a grievance of first magnitude, from which many great and aspiring spirits had suffered, inchiding even the prophet of tlio RovoUition and the jireacher of equahty, Rousseau himself, who had fully felt the pangs that impoverished genius has to suffer. Most of the new class of journalists and men of letters were afflicted in this way; and it is not wonderful that they also eagerly took up the principles of the Revolution. In France there was not merely the injustice of ability in the many denied opportunity, but there was sometimes a cold and uncertain patronage of literary ability, the only kind that got any sort of recognition, more frequently neglect, or a con- descending and insolent patronage, such as Dr. Johnson re- sented in Lord Chesterfield. In short, ability, which should have a sure provision in a healthy society, and which now has ' it in great measure, both because it has found its market and conquered a field for itself, or because society and the State has aimed at rewarding it better than at the time of tlie Revolution, was in the worst possible position, worse almost than in the feudal or in barbarian times, where at least ability was in demand for the military service or for the Church. It is not then quite accurate to say, as Rurko does, that talent rose against property ^ at the Revolution, but it undoubtedly favoured the Revolution, which promised opjiortunities to its natural ambition ; and especially was this the case when the new order of things was put on a firmer basis by Napoleon, the prodigious child of the Revolution, who favoured all ability except that of the literary and philosophic sort. Burke was right in concluding that the principles of the Revolution were infectious, and of universal application wher- ever like social circumstances existed. Oppressed peasants, on aspiring middle class, ability without outlook, all . lovers of liberty were everywliere in symjyathy with it, and everywhere presumably would make similar changes if they were able. To the classes named there must be added, in the cose of * The St. Simonians expressed it better : the Revolution, they latd, was the rising of Talent against hereditary usurpation and Privilege. i64 ENGLISH POLITICAL PHILOSOPHY Franco, the lowest class of all, but a very formidable one in revolutionary times, especially if a reckless government, ilotcrmined to win at all hazards, deliberately places arms in its hands — the class of the most reckless and desperate |)oor ; the " social residuum,** or sansculotteitf comi)08etl, in addition to • the ordinary jioor, of brigands and semi - brigands, loafers, viigalx)nds, broken men, social deserters, discharged criminals and convicts; in short, the most irresponsible and dangerous class, rciidy for any work or atrocities ; ami smih men, whether urged by designing men or by genuine fanatics, committed all the excL'sst'S of the Revolution, as they took a foremost part in ail the decisive days.^ The danger menaced every country, but England i)erhai)8 hiijs than uny other, because the ruling classes were strongly entrenched, the farming and agricultural classes were well affected, and the people generally not heavily taxed, while the lower iwor were even liberally treated by a very indulgent Poor Law. The discontented did not, on IJurke's highest estimate, amount to one-fifth of the people. IJurke, however, thought the danger great for Kngland. What was his plan for dealing with itt To make war on France, or rather on the revolutionary government of France, for the purix)se of restoring by force the old regime : the king to his legitimate authority; the ut)bility to their individual property ; the clergy to their ( ii.^/orate property — in fact, something like what took place in tiio end, but not till after the most extraordinary things had occurred, the establishment of democracy, and the sovereignty of the people, the tyranny of the Reign of Terror, the wonder- ful victories of the Republican armies, the still more wonder- ful conquests and marvellous career of Napoleon, — a series of events without a parallel, all of which would have been different if Kngland had not engaged in the war, almost, one might say, if JJurke had not broken from his party, joined the Tories, and preached a jjassionate crusade against the Revolu- tion. Why might not Kngland with safety have maintained neutrality, as Pitt desiredl Because, according to Burke, the danger was that the Jacobin principles would spread in ' Taino {^ivea ample prouf ou tbiit ))oiiit. BURKE 165 Kn^land by "a sort of dry rot."i Only war, offensive rind defensive, with France, together witli tlio repression of Jacobins at home, could bo eiFective. War would unite the people, would tend to silence the Revolution sympathisers, intercourse with France would cease, and rei)ression would do the rest. Ho concludes : ** I have done with this subject, I believe for over. It has given mo many anxious moments for the last two years." iJut he adds the remarkable words indicative of a momentary doubt and misgiving as to the policy he recommends : — " If a great change is to be made in human affairs, the minds of men will be litted to it ; the general opinions and feelings will draw that way. Every fear and every hope will forward it ; and then they who persist in opposing this mighty current in human affairs will appear rather to resist the decrees of Providence itself than the mere designs of men." This is true, though it is opposed in spirit to his proposal to stop any change by ft foreign war, forcible domestic repression of o])inion, anocting the vast possibilities for good that lay in the new inventions and machinery and the consequent expanding in- dustries, although Pitt had caught a prophetic glim|>se of it. We find a system of i)olitic8 that rests property mainly on i>re- scription, whatever injustices and abuses may be connected with it, as in the case of the feudal burdens and dues in France ; that rests government as well as property on prescription, and that accordingly approves of an irrcHponsible and corrupt oligarchy governing England, until the French Revolution breaks out, and tlien is reconcilable with something worse — .something very near to the corrupt and tyrannical despotism which he had passionately denouncexl some twenty years before ; we find a view of morals that rests right coniluct on opinions, manners, liabits, as external objective guides, or else on prejudice and mere strong feeling as internal instructors, instead of on conscience, reason, or utility. This stamp of mind that disliki's all change, at the Refor- mation would have condemned it, and would have been on the side of Philip ii. ; ut the rise of Christianity with the persecuting Kmperors. Accordingly Buike not only hated tlie Revolution, but despised the new moral philosophy springing up in Kngland, one of the most remarkable intellectual move- ments in our history ; he knew nothing of the great new philosophy springing up in Germany, including a philosophy of politics more deeply based than his own ; and he despised and BURKE 167 dotcstcd the now political philosophy that had arisen in France, although it was a speculativo development of the philosophy of Locke, which contains the principles of Burke's earlier political creed — a circumstance which made it extremely difficult for him to answer the new theory in the Appeal from the New to the Old Whigs. In every direction he was a reactionary or rather a con- servative, in full and entire sympathy with things as they are, with no belief in and no sympathy with progress, the chief thing for which the human species was made, and the rapacity for which in all directions is the sole thing great or hopeful about it. In fact, he finds his ideal rather in the past than the future. We see with him in all cases the fond back- ward glance on an imaginary past, never the forward hopeful one ; a yearning for an idealised and vanished ago of chivalry, never the belief in or the wish for the more glorious future which M'as coming, which Condorcct and many of his con- temjwrarics hailed from afar, and the hope of which sustained them in the hour of death. And yet such a spirit as Burke's has likewise its uses, though of the negative order. It forces us to reflect on the great value of our actual and realised conquests ; on society, that " groat partnership in all perfections,'* together with all its blessings — arts, learning, settled orderly government, security of property and person ; compels us to prize them and not to lightly hazard them — the substantial goods for shadows, or the proved chimeras and impracticable ideals of mere social theorists, charlatans, or self-seeking demagogues. Both the progressive aiid conservative types of mind are necessary for assured gains, but which is the more necessary the history of our species and the history of civilisation has answered in the most decisive manner. It is true, Burke would " improve " in practical politics, but within very narrow limits ; in religion and morals and political science he does not even believe that any further truth is to be found. We are in possession of truth. It is a question, as with the British constitution, not of pursuit but of enjoyment " It is good for us to bo here," m he says, just where we arc, i68 ENGLISH POLITICAL PHILOSOPHY and iliiu at a time wlien the first chapter of a new and glorious revelation of ' truth, religious and moral, had already heen written in the Clerman critical philosophy, and the further chapters of which the progress of science and criticism in our century has almost enabled us to complete; hut a revelation which would never have been vouchsafetl to those who think that they already hold truth as a finished conquest and in full acquisition; or wlio do not know that the clearing of the searching eye for truth, the widening of the perceptions and intuitions of beauty, the finer feeling for justice and the senti- ments necessary to carry it out, even the discoveries, inventions, •uid conquests in the material sphere, are all connecteil in the groat forward ages of humanity, and that it is tlangerous and ahnost a crime against liumanity to repress or check the move- luoiits of the mind in any forward and hopeful direction. Tiie French KevoUition did not fundamentally change Burke's ehaiayron, and Shelley, even Coleridge, Wordsworth, and Southoy, at first, were all in sympathy with the new spirit and the French Revolution, with the as yet unrealised but beautiful ideal that hung floating in the clouds. They were weary of the actual, and across the accidental and temporary horrors in France the poets saw the great principles that were striving to become realised and which were the essence of the Revolution. They made abstraction from • the aberrations, accidents, or fatalities of the hour, which did not impugn the greater good they expected from it. And so it liappcncd that the revolutionary spirit had in 172 ENGLISH POLITICAL PHILOSOPHY sympathy with it, the discontented poor, the discontented rich, discontented ability, the philosophers, and lastly, the poets;. a vast and august confederacy, all the better elements, if not the greater numbers of a nation, a company that nothing could resist And this not alone in France but in other civilised countries. In vain, then, save to hold the principles back for a time until it would be safer to give them free scope, the twenty-two years' war. In vain the repression in England. The cause had conquered almost before the last cannon-shot was fired that was meant to extinguish it And the small but rai)idly increasing band of reformers, after the peace, had only to go on with an ever-swelling tide and increasing numbers to victory. The Revolution came to England ; but it took a very different course from what it did in France. It is not marked by "Revolution days "(July 14, or August 10). There was no sensational capture of Bastilles to usher it There were only great demonstrations at which resolutions were passod. ]iut it waH found the people wore resolute, and their leaders were resolute; and amongst these a nephew of the Duke of Bed- ford (so severely satirised by Burke), true to the traditions of his noble house. Lord John Russell was in the front, and leil the movement to final victory. The Bill was carried, and the "sacred" constitution was reformed, rotten boroughs disfranchised, large new boroughs were created with the improved instrument and with the new infused blood. A most important series of Liberal refonuH were carried out, but with no desperate results, no mob violence or mob rule. All gloomy prophecies about proi>erty l)eing in danger were falsified. Whyl Because, in the first place, the composition of the National Assembly or House of Commons (the first consideration with Burke) was not changed but im- proved by the introduction of the new men, jxirticularly the great employers of labour; secondly, the franchise had only been partially and experimentally extended. There were no paid members in fear of losing their seats, no unscrupulous lK>litical gamesters like many of the members of the Conven- tion in fear of punishment from a counter-revolution, and not many mere theoriHts or impracticable fanatics. BURKE 173 We have had two other reforms in the constitution since then, one in 1867 and one in 1884) with the final result that we have come practically to universal suffrage and democracy, the sovereignty of the people, with great benefit to the working class, and without detriment to other interests; and thus far the Revolution has justified itself, and Burke's fears have proved groundless. . . BENTHAM 1 WORKS IN GENERAL AND THEORY OF MORALS § 1 Bubkr'b political pliilosophy, so impressively delivered, so original in parts, a mixture of i)er8ua8ion with good arguments, 80 readily intelligible and so easily applicable, furnished a new creed or body of principles for the Tory party, as well as a definite practical policy. The creed was much superior to the narrow, negative, and unenlightened one on which it had sub- sisted since Bolingbroke wrote his Patriot King, It not only furnished that party with new and more reasonable principles ; it thereby really transformed the party in some considerable degree in respect to its main function and aims. Far away from the forgotten watchwords of passive obedience and non- resistance, away even from the principles of the Court jwirty that Burke had so severely denounced in his Thoughts on the Present Discontents^ their mission for the future, as outlined by him, was to maintain intact the fundamental institutions of the country, the Crown, the Church, the Aristocmcy, and the fundamental institutions of civil society, such as property, at that time threatened, and, us u means to these great ends, to resbt all innovation. Burke's own ideal statesman indeed was he who could at once conserve and improve, conserve the good in the old while grafting upon it, if. the time was suitable (as it frequently was not), an improvement that did not involve anything wholly new either in fact or principle, because, as he repeats, "to innovate is not to imjirove." The Tory party learned thoroughly the first half of his teaching. Thev 174 BENTHAM 175 dropped, iiH inopportune, the idea of improvement or reform of any kind, and thus left it to be monojwlised by the future Whigs. During the tremendous life-and-death struggle, first with the Revolutionary Government and then with Napoleon, the Whigs had no chance of jKiwer, save for a brief period after Pitt's death, in 1806 ; and the war, as Ihirke prophesied, was destined to 1)0 a long one, as well as prodigal beyond all example of blood and treasure. This war, however, so disastrous during lUirkc's life, and, in fa(^t, up to the temporary peace (1802), was finished with glory, as Jlurko prophesied it would be if Britain put forth all her energies. It was finished, and with such effect that England, that appeared sinking in 1797, occupied a more commanding position in Europe in 1815 than she had eVer before held ; from all which it might have been expected that the Tory party, who had so firmly held the helm 'and saved the nation, and largely aided to save Europe from Kaiwleon, wo\dd enjoy a long lease oj jwwer and popularity. Ihit so it was not, for the conclusion of peace was quickly followed by great distress and increased imuperism, chiefly in the great manufacturing districts. The distress, for which the government was partly blamed, aroused discontent. The dis- content, as usual, was fanned by demagogue orators, such as Hunt. It spread rapidly, and it gave to the genuine reformers, the Radicals, like Sir Francis Burdett and the advanced wing of the old Whig party, their long-look ed-f or opportunity. The old cry of parliamentary reform as the first condition of all other reform was raised afresh. The cry increased in volume and in emphasis, being caught up by the vast mass excluded from the suffrage. Immense meetings in its favour were held in the great towns, some of which were dispersed by the military. The excitement increased from day to day; the spirit of the people was roused, and all ihh signs of a great approaching stniggle appeared. ? But the greatest and most ominous fact was that the cry was taken up by the great leaders of industry, the natural chiefs of the people in the manufacturing world; by that new and 176 ENGLISH POLITICAL PHILOSOPHY most powerful and growing interest to which the great Industrial Revolution had given birth. Here was a new natural aristocracy founded on wealth and leadership, the chief sources of all aristocracy ; yet very few could hope to get into the House of Commons ; not one, by any possibility, into the Upper House, into which none connected with business, save a banker, had ever been admitted. Burke had early noted the discontent of this class, which, since his time, had grown far more numerous and powerful ; they had wealth, they had social power, their employees were far more dependent on their capital and enterprise than the vassals and retainers of the feudal chiefs upon their lead and protection. But they had no i)olitical power. This state of things was unnatural, not in agreement with actual facts and Bocial forces, and could not last. From the day that the great employers of labour and other capitalists took up tlie reform movement, its success was assured, and only a question of time. Finally, the reformers had found a prophet who had already outlined a scheme of ideal legislation very suitable for future reformers to work out in practice, and one who had already written on the Constitution and Parliamentary Reform. The men of light and leading on the Radical side, like Sir Samuel Romilly, in search for the Locke of the coming revt)lution, announced that they had found him in the person of lientham. The Paines and Godwins had been found to be either too extreme or hopelessly visionary and impracticable. But here was a man, practical, public-spirited, philanthropic, a clear and vigorous reasoner, a man to interpret and express the practical aspirations of Englishmen at bottom fond of liberty, haters of oppression, but also, from long instinct, and, until greatly pro- voked, law-abiding — a man, too, with a new and seemingly simple moral philosophy, and with a new political philoHophy very diflerent from Burke's, and suitable to their purpose. Bentham's utilitarian philosophy would ap])eal to the common sense as well as the sense of interest of the Knglish people ; it would be a good philosophic supi>ort for present aims and future policy after victory. Bentham would be the man to give the answer, to furnish the antidote to Burke. BENTHAM 177 It tso hiipponed, too, by good fortune at this critical stage of English politics that there were gathered round Bentham a small knot of able men, whose abilities, united to those of licntham, were necessary to formulate a programme and to furnish arguments for the reforming party. These men were partly disciples and admirers of IJentham, but also original thinkers, who each contributed parts to the future Liberal policy and aims, the principal being Romilly, the law reformer, James ^lill, the historian of India, economist and mental philosopher, Ricardo with his revised version of Adam Smith endorsing the system of Lamez faire and foreshadowing the future policy of Cobden j in short, the greatest area for freedom of contracts and non-interference by governments in the in- dustrial spliere (except where it already existed in favour of einployers), together with Free Trade. To this add peace abroad and retrenchment at home, and there was a very attractive progrannne, supported by arguments that were very difficult for the Tories to answer. It wjis a programme to attract the great employers and great capitalists as well as the millions of the unenfranchised, since I>cnthani advocated virtually universal suffrage. The unenfranchised multitude, the capitalists, and the philosoi)hers, this time nearly all on one side, formed the army of attack. The help of the last was very imiwrtant, and for the first time they worked '* in corps " — the thing to which Ihirkc so strongly objected— and all three forces worked together, and to such purpose that a peaceful political revolu- tion was elTected of more significance than that of 1688, which transferred the sovereign authority to the aristocracy, — a re* volution that transferred power to the rich middle class, opened out a long career of political and social progress; of reform in all directions; a progressive movement which is hardly yet exhausted. In this movement much of the central impulse, especially as regarded law reform, as well as the complete philosophy of progress, moral and political, came from Bentham, insomuch that the whole after it had conquered has been called Benthamism, after his name. 13 ^78 ENGLISH POLITICAL PHILOSOPHY §8 The new but hitherto neglected prophet, accepted about the year 1817 as veritably such, was a remarkable mau in many ways. He was a typical Englishman of the best kind; a representative of the peculiar genius uf the Knglish race, which Burke was not j practical, clear-siglited, of much coniuion sense, filled with popular sympathies and public spirit. Without the great imagination, the dazzling rhetorical power, or the exces- sive sensibility of llurke, which are so many impediments to the discovery of truth, perhaps without the depth and originality of Burke, he was also entirely and absolutely free from the prejudices which Burke possessed and so powerfully defended, but which Bentham considered to bo the chief cause wliich hindered the improvement of mankind. He had delivered himself from Bacon's Idols of the Tribe, the universal delusions of men, and from the Idols of the Theatre, as he had little or no respect for previous philosophers or their systems. He had not equally delivered himself from the last weakne-ss of philosophers, the Idols of the Cave, those defects and intirmities proceeding from their own peculiar mental and moral natures. He had clearness of vision, love of truth ; he possessed in high degree the logical faculty. But his mind was more that of the reformer than the discoverer of truth ; tliat is, it was more fitted for seeing an evil and devising a practical remedy, than for abstract speculation, or making discoveries in sjwicu- lative morals or politics. It is true that he wrote much on these subjects, and in his early years wrote well ; that his Fragment on Oovernment is clear and vigorous ; that both in it and in his Theory of Leyislation he makes very happy applications of his principle of utility. The latter is an important book, which has had much influence. Still it can scarcely be called a great book, while the Principles of Morals ami Legislation is an inferior book both in design and execution, ami especially weak where it attempts to deal with morals. / It is as a law reformer and a political reformer that all his lowers are showui^ and a practicable scheme of reform in these ileixirtmcnts may bo as true an invention or discovery as one BENTHAM 179 made in the physical sphere, ami of essentially the same kind, only far more difficult, because the physical inventor has only to deal with physical laws and phenomena ever the same, while the reformer or reforming statesman has to deal with compli- cated and shifting phenomena, living phenomena, acting and reacting on each other, in which case to devise remedies for evils, or to make an improvement without producing greater evils, is peculiarly difficult. Such a mind rarely appears, the constructive mind that can devise the appropriate cure for evils, or means to foreseen good ends, because he must bo a man of science, and an inventor also to find the remedy, as well as a man of virtue to desire to find it j and the union of these qualities is rare. In IJentham they met. With an active, restless, exploring mind, that ranged in all directions for improvement, like Ulysses he would bo a " bringer of new things," provided they were better things. He did not dread innovations as Burke onomy, on Political Philosophy, on Prison Reform, on Law Reform, on the Codification of Laws, and on many other con- nected subjects. / His first published work, published so long ago as 1776, the year of the Declaration of American Inde- pendence, was the Fragment on Government^ which struck at the very outset the keynote of much of his life-work, wliich was to furnish light on law. as a speculative science, with a view to amending practice. It is mainly a criticism of a single chapter of lUacl'Mone^s Commentariefy dealing with the origin of government and law, but a criticism which reduces to a logical ruin the well-turned sentences of the author, especially where he holds, in a hesitating fashion, the Lockeian theory of an original contract or convention as the origin of law and government, nnd the subject's duty of obedience. yiBentham, on tlic contrary, holds that government and law owe their origin and continuance to their general utility, and that our duty of obedience is owing to their continiled utility, arid also that disobedience and resistance, in extreme cases, can only be defended on the same ground of, utility.^ In this brief essay is also to be found much that is afterwards made use of and further developed by Austin in his Lectures on Jurisprudence, especially the best known and really best part of them, en- titleil "The Province of Jurisprudence Determined": the theory that law is the command of the sovereign, whether one or a body (though Hobbes had already said the same) ; the true marks or tests of sovereignty and subjection, namely, the fact of the bulk or majority of the people being in the i8a ENGLISH POLITICAL PHILOSOPHY habit of obedience to the eomuiundfi of the one ur lK)ily, such one or body being sovereign, those obeying subjects. Bentl^am then turned to the subject of philanthropy, with which from natural disposition he sympathised, and which from Howard's labours was much in vogue during the last quarter of the eighteenth century. The subject of prison reform lirut occu- pied his thoughts, and from that he was led to the consideration of the whole subject of punishment. \ But a theory of punish- ment cannot be worked out without reference to the oilenccK which punishments are intended to prevent or lessen — their general nature, their several kinds and degrees. "What are offences? They are acta or forbearances contrary to law, to law as it actually is ; violations of the rights conferred by law, whether regarding property, liberty, reputation, or the fultil- ment of contracts. But the civil law may be imperfect, the rights conferred questionable, the punishment barbarous or excessive, in fact unjust. How are we to know whether the law is good, the rights proper, the punishment just? The answer in all cases is the same : the test of goodness or justice is the production of greater good to the community^ But some had already said as much, and Bentham for greater accuracy alters the word "community" to "Iha^^eatest jumibfir " in that community. In the case of punishment, as all punish- ment is pain or evil, it can only be justified if it prevents greater pain to one or more, and the best and most just punish- ment lH~nurrwHicTn5esr'conduce3 to this general end. There- fore the fegal rights, the offences, and the punishments should be revised under considerations of utility. But he had also perceived that actions were punished, and sometimes rewarded, by moral opinion or moral rules, though these moral rules might be wrong or arbitrary. Tlu* same question therefore arises again : What should bo the moral rule in such and such cases? how should it deal with such and such actions ? His answer is : Those acts should be praised whose tendency is to increase the quantity of happiness in/he community, to produce the greatest balance of pleasure ; those put under ban which had the contrary tendency. Accordingly, in 1780, Bentham printed for private circulation BENTHAM 183 luH Principles of Morals and Legislation^ which aimed ot developing the above general ideas : an ambitious but unfinished and abortive book, in which there are no principles of civil legislation, only a very slender treatment of the principles of morals, followed by a theory of punishment, and an inter- minable chapter on oftences and their classifications. His whole theory of morals in particular is incoherent, shallow, and fragmentary. Still, as the theory of utility in its simplest statement underlies his theory of legislation and his scheme of codification, as he undertook to give a justification for every proper law from the principle of utility alone, and, moreover, as the theory has been adopted and developed by more consistent and clearer moral thinkers, it requires a more careful examination than its intrinsic merits couM claim for it. Nor lot the reader 8UpiK)8e that moral theory lies otitsido our proper subject. For morals and politics are inseparably connected; some moral theory is always pre- supposed in political speculation, in legislation, and in the administration of the law. Statesmen when they make laws, judges when they interpret them, must be guided, consciously or unconsciously, either wholly by consideration of utility (if they accept utilitarianism), or else by their sense of natural justice, or moral sense, or by the general moral opinion of the community, based on a sort of compromise })etween the con- siderations of utility and justice. We find, too, that philoso- phers like Tlobbes and Locke base their political theories on moral theories, — in their case on the theory of natural law; that JJurke, though not very consistent or clear on the subject, since he denies that there were discoveries to Ix) made in morals or the principles of government, yet has to fall back in his political reasoning partly on the theories of natural law and utility, partly on the theory that men are moved to action by their moral sentiments, manners and prejudices, which leans to the new moral school of Butler and Hutcheson. V^With Bentham the moral theory underlying his political theories is the theory of utility ; the theory according to which actions are right or good in proportion as their tendency is to produce a balance of utility or pleasure or happiness, to use the i84 ENGLISH POLITICAL PHILOSOPHY more general word, but always understood to be some form of pleasure (or, which is sometimes the same thing, a diminution of pain). In like manner actions are wrong if their general tendency is to produce more pain than pleasure, more misery than happiness, taking into account the whole |x>s8ible train of consequences. I But at the time when Benthani was writing his Prmciphs of Morals and Legislation there were already in the field, speaking broadly, two predominant theories, — the one the theory of the new intuitive school resting on conscience, moral sense, or moral faculty, whose business it was to distinguish right and wrong actions ; the other, a much older one, called the theory of natural law, whose contents the new moralists desired to make clearer by providing more definite tests of what they should be ; that is to say, they did not seek to construct a theory in opposition to natural law, but to furnish a further development and a justification of it. Of the remarkable series of moral systems given to the world ever since the appearance of Hobbes' great work, that of Butler, us given in his famous Sermons, is the greatest and perhaps the best representative. In this book Butler maintains that we can determine immediately whether an act is right or wrong without regard to consecjuences, by a certain part or faculty called conscience, sometimes the "approving and disiipproving faculty," a faculty partly moral, imrtly intellectual, whose existence could not possibly be dis- puted but " from mere affectation." It is its special business to distinguish moral from immoral or neutral actions, just as it is the business of our purely speculative faculty or intellect to distinguish truth and falsehood ; or again of the aesthetic sense, as pointed out by Ilutcheson, to distinguish the beautiful from the deformed or ugly. There was also the system of Adam Smith, who largely agrees with Butler that conscience was the supreme directing faculty, but being liable to private bias in certain cases (as even Butler allows) he thinks that a sort of ideal or stimdurd conscience, a corrected and objective conscience, so to say, might be found — not in the individual conscience, liable to self-partiality, but in the imagined judgment of an external impartial spectator, AVe should ask in such a case what would BENTHAM 185 siioh diflinterestod person decide as the right and proper notion ; and to some such device we are still driven when disputes are referred to an impartial arbitrator, or where a dif- ference is referred to the decision of a jury, as to who is legally in the right or wrong, or still better to the decision of an en- liglitenrd and impartial judge, who often has to pronounce on the moral as well as legal aspect of acts in a co\irt of justice. All these new theories should be regarded in the light of attempted improvements in the old theory of natural law as applied in the moral as distinct from the legal sphere of con- duct. For lUitler, Hutcheson, and Smith all believed in the Jus Naturalp. And it was Butler's express aim to discover from human nature as revealed by psychology, from the actual moral constitution of man, what course of action was corre- spondent to it, was fit, proper, and right; and from this con- stitution he argues that man acts rightly when he acts according to his nature, his desires, appetites, affections, self-love, provided they are all controlled and advised by conscience informed by reason ; and this conscience, partly moral, partly intellectual, was the supreme faculty for directing individual conduct. This was a new contribution to the old theory of natural law, which had indeed, as Hobbes had [)ointed out, indicated and inculcated the particular virtues — veracity, gratitude, mercy, justice, etc. There were moral rules, part of natural law, suggested by reason, working on our natural and instinctive moral sentiments. Reason and considerations of utility had improved them, still they were first the suggestions of nature. In jmrticular, the theory of natural law had improved the civil law, the chancellors and equity judges being largely guided by its principles in their equity decisions. But natural law in its application to equity had been developed as far as was possible without new moral ideas or new points of view or a revolution- ary interpretation of it, such as was contained in Rousseau's doctrine of the natural rights of man. In fact, as Sir Henry Maine affirms, equity in England, at the time of Lord Eldon, had become as rigid and inelastic as the common law had been when equity was first called in to supplement it. Its equity had become inequitdble from not advancing with the better |86 ENGLISH POLITICAL PHILOSOPHY moral ideas and sentimenta as well as the improved moral practice of the time. . There was also another moral theory ;\ an old theory revived by Hume, Priestley, and later by Paley, which was opposed to both the old theory of natural law aud the new intuitional theories — the theory of utility as the sole test and principle of morals. Bentham adopted this theory, he tells us, from Humey Ho tried to develop it further, and by good fortune has got the whole credit of being the founder of utilitarianism. Thus, then, there were abeady in existence in 1780 at least two moml systems to guide men's private actions. xOne was the law of nature, with a great history of at least two thousand years behind it, which ottered itself as a model for the civil law as well as the source of the moral law; the other, the new theory based on conscience or moral sense;/ and it lay on Bentham in his assumed role of reformer in moral philosophy to refute the school or schools in the ascendant. The way in which he attempts to do this is at least original. He puts them all into two classes, — one called the "ascetic" school, the other the school of "sympathy and antipathy," including most of the original speculators since the time of Hobbes. \ln regard to the first, who thought that pain should sometimes be courted and pleasure shunned, he simply repudiates the view ;/affirms that the production of pain is wrong, unless to diminish future pain or promote future pleasure. As regards the rest, he attempts to refute them en bloCj by labelling them all together, as following the principle of sympathy or antipathy, and then by identifying such prin- ciples (whether called moral faculty, moral sense, conscience, common sense, moral reason, etc.) with, or bringing them under, the whole genus of innate prejudices, which, of course, deserve no respect as moral guides. They are " merely so many contrivances for avoiding the obligation of appealing . to any external sUmdard and for prevailing upon the reader to accept the author's sentiments or opinion as a reason for itself." They are question-begging names, to colour our prejudices, our likes aud dislikes, aud like all prejudices the BENTHAM 187 groatest bar to truth and human improvement, "a cloak and pretence and aliment to despotism." By this method of summary conviction he disposes of some half-dozen systems at a single stroke. But this is not refutation but a mere assuming of the point at isstie, with the additional fallacy, or sophism rather, of assuming that the different systems are oil forms of one system. They each rest on specific grounds, make separate appeals to reason, and his business was to select the l)cst' of them, to address himself to their grounds and reasons, and, if he was able, to refute them separately. But this ho makes no attempt to do. In a footnote, indeed, ho attempts to deal with them seriatim. But it is rather a tra- vesty of each system that he gives us, with a contemptuous sentence or two by way of. refutation.* Let us now follow the constructive part of Benthani's own theory so far as he gets with it. He 1ms decided that there is no moral faculty or conscience whose business it is to inform U8 of the morality of acts ; and as for the so-called law of nature, "people," he tells us, "go on giving you their sentiments about what is right and wrong; and these senti- ments, you are to understand, are so many chapters and sections of the law of nature." It is solely by the principle of utility that the moral character of acts can be known ; by their ten»lcncy to produce a balance of happiness, or if any special faculty were concerned it would be the faculty of reason, which is called upon to trace the good or evil, to make the complete calculation of each, and to strike the balance after setting off the one against the other. This is indeed a difficult operation sometimes. Still it has been largely done for us already ; the experience of the race has not been for nothing as to the good or bad consequences of actions (as Mill explains). Moreover, Bentham projxjscs to simplify the calculation of consequences very greatly by rcatw, and the impurity of the first pleasure. "5. Sum up all the values of all the pleasures on one side, and those of all the pains on the other. The btUance, if it be on the side of pleasure, will give the good tendency of the act upon the whole, with resi)ect to the interest of that individual person ; if on the side of pain, the bad tendency of it on the whole. " 6. Take an account of the number of persons whose interest appears to be concerned; and repeat the above process with respeiit to each. Stim up the numbers expressive of the degrees of good tendency, which the act has with respect to each individual in regard to whom the tendency of it is yood VL\ioi\ the whole; do this again with respect to each individual in regard to whom the tendency of it is bad upon the whole. Take the balance \ which, if on the side of pleasure, will give BENTHAM 189 tlic general good tendency of the act with respect i6 tlic total number or community of individuals concerned ; if on the side of pain, the general evil tendency with respect to the same community." * He gives us four different sources or sanctions of pleasure, namely, the physical, jiolitical, moral, religious — the last three having been already given by Ix)cke, the first one by Butler in his theory of " natural government," 2 in which he makes the pleasures and pains that naturally follow acts a species of rewards and punishments annexed to natural laws or com- mands. He pretends to enumerate the different kinds of pleasures and pains in a list which is far from exhaustive ; discriminates the "circumstances influencing sensibility," that is, which make the pleasures and pains vary from the normal or ordinary standard, and having done so we find his theory of utility is finished ; for what he says about motives, intentions, dis- positions, consciousness, is all preparatory to his doctrine of punishment, since to stop ill acts by punishment it is necessary to analyse these notions. This part of the work is better, and his doctrine of punishment which follows deserves praise. The like cannot be said of his long and tedious classification of offences filling nearly half the book; full of rcixjtitions, most of the classifications being obvious or easily gathered from actual legal systems. He then gives us a chapter containing the distinction between what he calls private ethics and the art of legislation; the former relating to the proper conduct of the individual in search of his own happi- ness; the other to the laws that should be laid down by the legislator to promote the general happiness. There are rases where the legislator should not interfere. These are left to private ethics ; they are really left on his principles to positive morality or positive moral rules, which is a very: different thing. Lastly, we have some good remarks about the nature of universal jurisprudence, which afterwards bore fruit in Austin's Lectures on Jurisprudence. * Principle of Morals and LegislalUm (Clarendon Press), pp. 80, 31. *. Analogy f chap, ii., treating of " natural government." 190 ENGLISH POLITICAL PHILOSOPHY §4 We are here chiefly concerned with liis theory of utility, which, crude as it is, it is necessary to examine fully. Ac- cording to Beutham, we are to do that which will bring the most happiness, we are not to do that which produces a balance of unhappinesH, and happiness has for its raw materials pleasures of ditl'erent sorts, amongst which may come in occa- sionally the pleasures of benevolence.^ But in order to apply Bentham's test, to know if an act will bring in a balance of happiness or pleasure, in order to add up and cast our profit and loss account, pleasures must bo capable of being compared quantitatively. They must be re- ducible to some common measure, so that we could say that so much of this kind is equal to so much of that. They must be all reducible to something common\ Accordingly, Bentham lays down that pleasures only differ ui intensity, duration, certainty or uncertainty, propinquity or remoteness in thue. But Paley rightly excluded, as we think, the two latter, thus leaving only differences in intensity (degree) and in duration. / Bentham allows of no difference in kind. The pleasure of poetry only differs in degree or duration from the pleasure of the table. But that there is a difference in kmd, and that no amount of one kind would compensate for the h)ss of the other, the consciousness and conduct of the human race testifies. That they are incommensurable, that one kind is enormously more desired, that another sort just as intense and that may be had as long as anyone wishes is valued slightly, are facts not to be disputed; and, indeed, Mill admits them, passing in silence over this part of Bentham. But Bentham liad to deny any difference in quality, otherwise pleasures could not be compared quantitatively, so that he could say how much of the one was equal to how much of the other, or ex- press them all, so to say, in terms of the same unit. If we can- not compare the pleasures (quantitatively, it is impossible to sum up the amount, the quantity of pleasure following, but imprudent to act until we know. It is evident too that the ^ Piincijtlcit of MonUi iiiui Lci/islulion, p. UlU. BENTHAM 191 degr«^o of certainty of a future pleasure docs not admit of a quaiititJitivo «;omparison even witli the other elements, duration and intensity. It counts for something surely, e.g. the un- certainty of the enjoyment of future wealth makes its estimated prosont value less, and sometimes makes men prodigals. 13ut how much less who could exactly say? To apply Bcntham's test or measure we should 1)0 able to refer all pleasures to a common standard measure, and then multiply those that arc proloiigf'd hy some number expressing length of time, those in liighcr degree than the standard one by another number (though it will be hard to get our pathometer), then we should check or make some allowance (but how much?) for the degree of uncertainty. We have to do all this for the pains too, and we may have to carry this through a long and shifting train of conseromi8e8 to be an advantage in so doing greater than their share of the 192 ENGLISH POLITICAL PHILOSOPHY general advantage from its observance, especially if they, think they can escape detection or punishment ; in which cose being, as Bentham says, ** governed by pleasure and pain in all that they do or say or think," if they have no moral shrink- ings or scruples, no conscience, U) use the ordinary word, to protest against it, they should break the rule on Bentham's principles. Further, they must do so, unless there is a penalty attached so great and so certain that it will appear to be the individual's interest not to do so. It is but a question of alter- ing the weights of reward and punishment (pleasure and pain) by putting such a heavy weight of penalty (prospective pain) into the other scale as will neutralise the expected pleasure of the breach. On the one hand, so much pleasure with a risk of detection and punishment, which nuiy be discounted and deducted. On the other side to deter, a great pain, detection followed by social disgrace, to be set against the share of the general advantage which the rule secures. Only make the pain sutHciently large, it would seem, and the immoral indi- vidual can be induced to fall into line with the obedient citizens. To do this is the work of the legislator in the case of law, or of public opinion in the case of moral rules. But the penalty must be certain to ell'ect its puri)Ose while there are all degrees of certainty down to a ntere faint possi- bility ; and if a person can be tolerably certain of not being de- tected in the case of a violated law, or of not being detected or not punished if detected in the case of a moral rule broken, he may do, and on Bentham's principle ought to do, the prohibited act, if there is no such a thing as conscience or moral repug- nance to be overcome. In fact it is not a wrongful act in the supposed case, but a prudent act calculated to add to the doer's happiness, and everyone does and should act for his own liappiness. It tends indeed to diminish the general happiness, but not to diminish his own, and we are told he can have no motives except his own to move him or to restrain him ; he can only have a benevolent motive to restrain, if he is benevo- lent, and it may not be strong enough, while many have it in no degree. In short, what on his fundamentid principle tt person cannot helji iloing — following tlie larger mass of BENTHAM 193 pleasure nnd avoiding pain — ought not to be called wrong or immoral, and ought not to be punished. In like manner positive laws, civil and criminal laws, are to be tested by their tendency to produce the greatest happiness to the community. Take the case of property, which is every- where protected by law, and in the main, according to Bentham, because it is for the happiness of the greatest number; in fact it is because it is every person's interest to secure the greatest quantum of divisible happiness that can come from property, that property is made sacred and defended by law. But it appears not to be for the interest of thieves or burglars or swindlers and cheats to respect proj^erty, though they would like all but themselves and colleagues to respect it, because they know as well as Hobbes that if no one respected property there would not bo much for them to attack. Granted the thief is a bad citizen, how, on Bentham's principles, is he immoral 1 Clearly not if he is born a thief, because he can bo under no obligation to obey laws which will cause him to die of hunger, miless he goes on the parish, which without having made Bentham's exact calculation of pains and pleasures ho has decided against. In any other case he weighs his chances, takes what property he can, thinking that this is on the whole his interest in spite of the danger of punishment. Weighing the possible booty against the possible punishment, and provided there are not too many undetected thieves, ho still benefits by the respect for property in the great majority. \ Bentham's answer would probably bo : Such acts as theft, fraud, burglary, are bad and immoral, because they tend to subtract much from the general happiness, and if tlie thief or burglar does not think them bad or immoral, utilitarians do./ They art; bad because they produce a great balance of unhappi- ness, insecurity of property, loss of property, alarm, ctc.^ and all the greater the more unconvicted thieves there are. From the thief's point of view, if he does not feel he ought not to steal from a conscience that we allow he has not, and which if he had would not be a guide, yet he knows the law and the penaltv, which latter the law should make so certain and '.3 • 194 ENGLISH POLITICAL PHlLOSOPHy effective that it will be the thief's interest to fall in with the law, taking all things into account. This seems all the answer that is possible from Bentham's side, but it is not quite satisfactory, because the only obligation to obey is the fear uf punishment and not the protest of his own nature or conscience ; and if he can escape the former, being bound from self-interest, and even necessarily bound to follow the greatest pleasure, he has, as Butler says, an obligation to vice, if conscience be supix)sed out of the case. "His own interest is a manifest obligation," says Butler, "and there is not supposeil any other." Take away conscience, moral sense, moral sentiments, as Bentham does, and there is no such thing as moral or immoral, good or bad acts, though there may remain acts that are generally useful or hurtful. The detected thief or swindler has only made a miscalculation in that case. Vice, in general, is only a miscalculation of chances. But I must go further and say that, even in the axae of the detected, punishment, which it is the main object of his book to iimke less in amount as well as more useful, cannot be justiiied on Bentham's principles. It is merely the exercise of force on the jKirt of society, the majority, for its own benefit. Take away the instinctive feeling of wrong or injustice and the instinctive desire for punishing the offender, a feeling universal when one is injured, a feeling which the injurer, the thief, or fraudulent person, jwssesses likewise, a feeling which lies at the root of justice, as even Mill allows as well as Butler, there is then no moral justification for legal punishment but the benefit of society. May Bentham reply that that is quite suflicient justification ; that when one of two interests is inconsistent with the other, the smaller should give place to the greater ; the supposed interest of the thief or burglar to the larger interest of society composed of many persons. I rei)ly that it is, perhaps, the best answer ix>s8ible ; but besides being inconsistent with his fundamental principle, it is neither proved nor self- evident that the true test of right action is its tendency to produce the happiness of the majority. It would on this view be only necessary for thieves and dishonest persons to be in a majority and to come to the conclusion of the French BENTHAM 195 communist thnt " property is robbery " for them to have all the right on their side, if there is no such thing as natural justice, and a moral sense responding to it. ^ Society is only justified in applying punishment to an offender when its members generally feel that it is just arid right, as well as generally useful that he should be punished ; that he is only getting what he deserves, and the offender should feel like the penitent thief in the Gospel — "We receive the duo reward of our deeds." This feeling of justice is a part of the collective conscience made up of individual consciences, the existence of which Bentham denies, and by so doing takes away the moral base of punishment. / The moral sentiments and the collective conscience here in question arc based on the feeling of wrong suffered and the desire of punishment when one receives an unprovoked injury. It exists in all men, and even in the lower animals something similar shows itself instinctively and immediately and leads to retaliation. It is given to men for their preservation, the protection of themselves, including their children and their property, so that its oVgect may be said to be utilitarian ; but the instinct, the intuition itself, which is a rudimentary moral sense or feeling of right and wrong, and the origin of a large part of conscience, cannot be resolved into considerations of utility. vThus, then, finally, in denying a conscience or moral sense or instinctive moral sentiments, not only is Bentham's i general theory of morals weak and non-moral, but his theory of punishment, his first and his last thought, in place of resting on the unshakable base of general human nature, rests on the right of the strongest. ^ ' § 5 To return to his theory of happiness. We have seen that his calculus of pleasure and pain would be very difficult to apply, 80 as to help us in pursuing our own happiness. Bat this is the chief thing, because we have no adequate motive, he tells as, to follow any course that does not conduce to our own happiness.^ We can only pursue the happiness of others, so far as it * Principlei 0/ Af orals and LegiBlationt p. 318. 196 ENGLISH POLITICAL PHILOSOPHY forms a imrt of our own, is subordinated to our own, as when, under the impulse of benevolence, sympathy, or natural affection, we try to promote the happiness of others. But then what becomes uf the dictum that ''morality commands each individual to do all that is for the advantage (t.e.'for the happi- ness) of the community, his own personal advantage included " t ^ la it not evident that the average man has no motive that can possibly animate him to go beyond his family, his friends, perhaps his party or sect, or some distressed persons, or in the case of an exceptionally benevolent person (like the late Baroness Hirsch) with greater means, perhaps to embrace a somewhat wider view in the distribution of charities? On the other hand, if the selfish feelings happen to bo comparatively strong, a man will neglect the happiness even of those who have the clearest claims on him, unless the sanction of opinion compels him to the contrary course, that is, unless the fear of punish- ment acts on him. ^ It may, perhaps, be replied by a disciple like Mill — for Bentham on his principles cannot reply — that utilitarianism only asks him to aim at the happiness of all ec^ually, himself included, "everybody to count for one, nobody for more than onc.'V^ But, according to Bentham's fundamental principle, a man can only be induced to act from an expecta- tion of greater pleasure on the whole to himself by so acting ; and unless a man does actually love all his neighbours (and not merely his friends) as himself, he would be acting absurdly if he tried to act on Bentham's command. There would be no pleasure or profit in the doing the greater jmrt of it. Therefore his action would be without an adequate cause, which is no more possible in the moral world than in the physical. Only a very peculiar man like Howard can have a love fur mankind, or even his countrymen, or even his towns- men ; but, what is more to the point, to aim at the general happiness is not only absurd from want of motive ; if attempted t(j be carried out, a whole cluster of absurdities and practical contradictions would ensue. Everyone is to aim at the general happiness ; is to be thinking of the happiness of other {x>ople mainly, his own counting only on a level with any other * Theory 0/ Lei/ulatiun, p. UO. BENTHAM 197 person, ill which cnac he will not only not add to the general hapj)incsa, but he will miss his own that ho might have secured. \\Vo should have a topsy-turvy world, in which each one is aiming at the other's happiness, forgetting his owi^ But as, in this competition of philanthropy, he must be content to receive as well as dispense benefits, he will i)erhaps get back as much as he gave. But this might not amount to much. For our happiness can bo best achieved by ourselves j in fact, for the most part, it is intrusted specially to " our own keep- ing," as Butler says. We ourselves are in a peculiarly favour- able condition for promoting it from knowing our own peculiar temperament and circumstances, our wants and aspirations or endeavours. As a rule, no one can help us much, though some may much hinder us by well-meant interference; though of course at times we may want assistance, advice, and good offices, which we should hold ourselves bound to the best of our ability to repay. liut, on the absunl theory of pursuing the general happiness, a man is not to be specially labouring for his own but partly for it and mainly for that of others; how many we know not. ^ Kach one in like manner is to be so engaged, and with the sure result that each one's stock will be much smaller, while the contribution that he receives from his neighbour's somewhat • imperfect attempts to supplement it,' will not make up the e snid that it is realised in a rommunistic society, hold- 198 ENGLISH POLITICAL PHILOSOPHY ing property in common, living and labouring together and dividing the produce of the labour equally ; that each pursues the happiness of all the rest, including his own^ and that "everybody counts for one and nobody for more than one." Very possibly this was the model in Mill's mind, in favour of which he argues in his Political Kconomijt but under com- munism each one does not concern himself with the happi- ness of the rest individually, to the neglect of his own, but each aims at increasing a common stock of the material means of happiness of which he gets his equal share. It is a possible scheme, but in Ikntham's opinion the amount of happiness realised under it is not great.^ And it is sufficient answer to this view to say that the "greatest happiness prin- ciple" had necessary reference to an individualistic society such as our own, where, as we have seen, it involves a tissue of absurdities.^ The truth is, that to aim at the happiness of others individu- ally, or rather the diminution of unhappiness in its most for- midable shapes — sorrow, sicknesji, poverty, the losses ami crosses of life— is the exceptional business of certain specialists for whom there is a need, just as there is a need for physicians (but not too many physicians), namely, sisters of charity, volunteer hospital nurses, clergymen in part of their character, philan- thropists who aim more comprehensively, benevolent persons, thoughtful in dispensing their beneticence, lest they do more harm than good and so lessen happiness, and conlidential private friends, whose counsel and sympathy muy lighten our troubles, as their i»resence or regard may add to our happinesn. On the moral reformer or teacher, and the statesman, it is incumbent to aim at the general happiness, but in a quite dill'erent sense. The statesman aims at producing huppiness in the gross, for large masses, by good laws or measures ; he aims at the collective * Theory of Lrfjisltttiun, \t. 1'21. ^ It niiglit bu iiiiu;{ined that I have iiiiiiiutcrprctid MiU'si laeaniiig, uh it seems dillicult to Iniheve that so ahlu a luaii ah Mill cuuld huvu hchl the \Iq\\h above criticised ; but both Ptol*. Urotc and lierbcit Spcucir under- stand him in the sense that I have attributed tu him. See (irote, Xmuh, of Uic UtUiUiiiau Philoaojtliy, chap. v. ; and S|H!nccr, Data of Kthia*, chap. xiii. g§ 85-87. BENTHAM 199 instead of tlio individual happiness — at the happiness or well- being of tnoHf or allf instead of earh Keverally. In like manner, the moral reformer and the spiritual teacher of his time aim at comprehensive results. Ikit perhaps Bentham only meant that it should be the general aim of all to get a good government which should make wise laws according to the principle of utility, and thereafter by obedience to such laws as well as to positive moral rules framed on the same prin- ciple of utility we should all be acting for the general happiness, including our own. ]]ut if he oidy meant this he should have given \\9 the minor moral rules for guidance of life, since the general one, to aim at the general happiness, is impossible, and political action makes but a small part of life. He really seems to have meant mtich more, to ask for more than political action, much effort for others, though from his fundamental principle he should have asked for nothing that benevolence or sympathy woul'l not spontaneously suggest. Mill, in his UtilUarianiamy eertainlv asks us to aim at the general happiness, our own in- cluded ;\but, as I have shown alK)ve, he is not likely to get the generality to follow his maxim so long as common-sense exists, and the moral world is something of a cosmos. Wc only want a limited number of benevolent, philanthropic, and dcvoteo8sible to liavo a peculiar feeling, composed of airection, admiration, gratitude, awe, and ruvorenco ; and naturally we have it more real for the great religious founders, poets, and philosophers, the best part of whose mind and spirit was left behind for the world and is still alive in their works, fur our comfort or consolation or delight. This is perhaps posHiblo, and hence the cult of great numen — of the great nervers of the race, the great founders of religion, lawgivers, poets, philosophers, scientific discdverers, the revolu- tionary inventors, even great national founders or deliverers, sometimes even great captains and conquering kings — is worthy of praise. It tends moreover to make us reverence anrovision is made for self, for our own happiness, "because we are in a peculiar manner . . . intrusted with ourselves; and therefore care of our own interest as well as of our comluct particularly belongs to us," and thereafter that the " more of our care and thought and fortune" is devoted to others the nearer we come to the counsel of perfection — to love our neighbour as^ ourself. And reason, moreover, he explains, jwints out that our benevolence should not be indiscriminate, — that our efforts must be confined to our neighbourhood, that " children and families " come first in our regards ; that " friendship or former obligations " require that we do good to some preferably to otliers : and thus, finally, we get practical guidance from Butler, the man who believes in moral sense; while from Bentham, who fancied he had refuted all theories of moral ' Nk, EfhiM, chap. x. 4, B. * Sermon xii, aoa ENGLISH POLITICAL PHILOSOPHY sense and conscience, we get only what in the sphere of morals (as distinct from that of legislation) is a hollow and inapplicable phrase. There is yet another count in the indictment of Bentham's moral system. While making absurd demands on human nature for impracticable virtues, inconsistent with his own fundamental principles, he fails to i>oint out the need fur devotion and sacrifice, and has not discovered that there is such a remarkable fact in human nature. v But the fact is there ; and there are reasons why it should be so. For society will always require sacrifice from uU at certain times and situations, but more especially from certain callings. Society always has required, always will require it, though probably in less ilegree as the world pro- gresses. Society will call for it in certain circuiusUuices, will expect it, and will get it in the hour of need from her devoted children, whether told oil' or voluntarily otfering fur the post <»f honour and danger. She will send her sons to certain ilungcr, sometimes to certain death ; and, what is more remark- able, they will go without a murmur, nay, even cheerfully, sometimes joyously. Can this be explained on any mural theury ? Yes ; but not on Bentham's. The primitive germ of sacriiice is to be found in the parent animal's devotion to its offspring, whose safety and nurture require the care, the labour, and the protection of the parent. It exists in the lower animals as well as in the human species, and in the case of the former the parent animal will combat to death for the young. It is an instinct in all cases, even in the human animal. The instinct is natural ; it exisits because it is necessary, because without it the oU'spring, tbe family, could nut be reared, nur (in the human hpecies) the larger gruup of kindled, which proceeds from the family, be formed. In a word, without the instinct neither the family, the tribe, nor the natiun cuuld have come into being. Human society could not have existed without it. Bentham in his later writings insists on the fiict that, without selfishness or BENTHAM 203 epoism, neither life nor society woultl have hcen possible. Ho has omitted the other side of the story that without the opiK)sitc fact of sacrifice it could not have arisen, and could not continue to exist without it even now. But it was especially when the tribe or clan was formed that this part of human nature received a prodigious development, for then it became necessary that men should be ready to fight, and, if need be, die for the larger group, whose most vittd interest of 8elf-])reservation required it. Though there was much harmony within the groups of kinsmen, the records of history show us incessant war between the groups, and later on between the nations, that resulted from the forced aggregation of the groups. Under such circumstances from the primitive natural germ was developed unflinching courage, absolute and entire devoted- ness, and the spirit of sacrifice, at a moment's notice, as the most necessary and almost the sole virtues to save the clan from its enemies. In order to call out fully such necessary but costly and, to the possessor, sometimes self-destroying virtues, it became necessary to stamp them with the highest approbation and ]»raipe. The general api)lause was given to courage an Mill affirmed tliat the two volumes entitled Bentham's DeoiUoloyy were uot to be regarded as Beutham's, because ho hud never published them ; and from the Editor's own Preface it is clear that the contribution of Bentham to the volumes was small or microsc'0|tie. BENTHAM 209 myself ftiid my calculations. Shall I not be likely to decide according to my own liking if a positive moral rnle forbids, by making exceptions to it, extending these to supposed analogous cases in the way the judges make case-law ? so that a general principle and rule will be lost in a multitude of sub- classes of ox(;ei)tions ; and the matter is so much worse, as the making of the new case-law in morals would be left to an interested judge, little able to make the nearly impossible cal- culation required. And therefore, finally, I infer that until a good system of new moral rules are enunciated ,and generally approved, it would be better for us to go by the old moral opinion unless clearly against reason and conscience. For I assume conscience, since later utilitarians like Mill and Herbert Spencer allow it. Uut will conscience or moral sense help us any better? Yes, I think, to a considerable degree, for its express business is to be nn impartial witness and impar- tial judge as between our claims and those of others, and in (jeneml it is so. "Almost any fair man in almost any cir- cumstiinces," says Butler, could tell whether a contemplated act was right or wrong, (j^entham, however, does not allow of the existence of conscience or moral sense, other than as part of a general bundle of prejudices, all of which he wishes to be dis- credited and rooted out.} There is room, no doubt, to practise casuistry with one's conscience, but there is room for much nioro in trying to apply to conduct such a wholly impossible standard as he recommends. If our conscience, our standard, is suspected of self-partiality, as it may be, the only help is to supplement it by the impartial judgment of a disinterested and enlightened third party. The jural view of ethics, ho thought, would greatly sim- plify morals. It would bring all action (and even dispositions) under the dominion of reward and punishment, but chiefly the latter. It would bo only necessary to have a systematic classification of wrong acts, other than illegal ones, to find the amount of punishment that would lie a full cotuiterpoisc to the expected pleasure of the wrong-doing, and only apply it with certainty, and the ill deed would not be done by a rational or oven a selfish man. It would dio in the conception, and thus, 14 aio ENGLISH POLITICAL PHILOSOPHY to vary Hamlet's words, the fear of punishment acting in place of conscience ''would make cowards of us all," in case of a contemplated forbidden act. A philosophic code of moral conduct, and a philosophic code of repression, was all that was necessary to make man a moral being, just as a similar civil code and penal code would make liim a law-abiding citizen. The religious in like manner may have their actions further controlled by the divine law; and the i)rudent by the physical sanctions, the natural rewards and punishments that follow observances or breaches of the law of prudence, and thus all the actions of man may bo brought under law — religious, civil, moral, prudential. A perfect moral world under a coiiipleti' system of laws, kept in order mostly by the sanction of punishment, but also in part by a system of rewards, the rationale of which he gives us in another fragmentary treatise.^ What more could a philosopher, a philanthropist, and a law reformer ask? In reality, as we have seen, his ethical theory, his whole view of morals, is inconsistent, impracticable, shallow, and unsystematic. What is new in regard to the prudent conduct of life, his calculus of pleasures, is inapplicable to practice ; what is new in regard to the moral conduct of life is for the most part impracticable j while the part that is practicable has been better treated already, and much more to the point, by otlicrs. As a utilitarian, Hume is far more acute and original. In fact, there never was greater pretence with less performance than in the ethical part of the Principles of Morals ami Legislation ; never greater contempt manifested for leading thinkers, com- bined with less ix)wer of improving on them. * Works : The Itatii/nale of Reward. II. THEORY OF LEGISLATION § 1 In morals, in the sphere of private life and conduct it is clear that Bcntham's utilitarianism will not carry us far or be of much assistance to us. It is otherwise in politics, in the field of legislation or law-making, and in government generally. Here the stjinclnrd or aim of the general happincvss is both more applicable and also the juster and more reasonable aim. Moreover, in England the standard has been applied, and in the political field it has largely conquered, and largely owing to the influence of Bentham and the reforming impetus which he initiated. Our laws, both civil and criminal, especinlly the latter, have been improved, the judicature and the administrative machinery of justice have been reformed. The constitution and Parliament have likewise been reformed in the democratic direction so as to give the greater number a greater weight in the control of the government. Universal suffrago and secret voting, both main planks in Bentham's IH)litical platform, have come, while by the introduction of the competitive examination system, the ability of the middle class has secured a large share in the public service of the country, to the exclusion of the corrupt placemen of Bentham's time, the friends and connections and dependants of the Aristo- cracy or the Crown. But though the greatest happiness tept is more applicable than any other in the field of politics, it is not always easily applicable, and it does not apply without important qualifica- tions. For, in the first place, as a nation is an entity, an organism having usually a long if not an immortal life, the aia ENGLISH POLITICAL PHILOSOPHY happinesd of tuture generations, and especially of the next one or two, more closely connected in affection and interest with the existing one, ought to count. And, in the second place, as some of the happiness and even the lives and fortunes of the existing generation may have to be risked and destroyed to preserve the national existence and independence, there is here another great difficulty in applying the test of Bentham. The happiness of future generations must sometimes enter the calculations, while part of the happiness of the present must sometimes be sacrificed, though the pain of submission to foreign rule and the loss of political independence might be thought to be greater than any happiness sacrificed in resisting Uio foreign enemy. Hut again, a nation, as a corporate entity or as a social organism, has a mental and moral life of its own, and no moi'e than an individual can it "live by bread alone." A greiit nation must bear its part in the work of advancing civilisation, must cultivate the advancing sciences as well as the useful material arts, must keep in the front rank in the aesthetic arts, must aim at the best in literature, learning, and philosophy. And it must aim at all this, not so mucli because these things tend to increase happiness, which they do, or because they yield high or serene delight, which they do, though not resolvable into or expressible in terms of the lower forms of happiness, either intensified or long continued, as Ixjcause it is in the nature of man, especially of man in civilised societies, to cultivate all these unique and different things and to endeavour to excel in them. To do so is in a measure the end of his being, even more than happiness, though their cultivation brings happiness with it, first to its cultivators and next to the far larger number to whose minds and souls they minister. Uut as the results can form but a small part of the happiness or spiritual food of the greatest number, it may be doubted if a government aiming solely at tlie happiness of the majority, would be sufficiently disposed to the encouragement and furtherance of these higher things. Into considerations and limitations to his theory such aa these Dentham does not enter, probably would not admit BENTHAM 213 them, tliou^li liia disciple, Mill, presses them. According to Hentham, in the sphere of government those laws, institutions, and measures are good and right which promote the happiness of the commnnity oi* the majority of it, or which produce the greatest sum of happiness to tlie greatest number, not the greatest liappiness of an aristocracy, or of a king and an aristocracy with their dependants, as Bentham comjilained was the view of the ruling classes of his time. V>y this tfjuch- stone he would test all our laws, civil and criminal ; all our public institutions, the Monarchy, the Established Churcli j all institutions relating to private life and social intercourse, l>rivate property, inheritance, marriage. If they do not conform to this test, if tliey do not favour the greatest happiness of the greatest number, he would either abolish them, giving the necessary compensation to injured individual interests, or modify them so far as ta make them conform. The fact of their existence is no justification unless they agree with the universal good. He will not defend them on Burke's ground of existence, and long existence, — of prescription, in a word. All laws and institutions, even prescription itself wherever taken up by law, must be justified on the same common ground : Do they or do they not make for the general good, including particularly the working classes and the lowest sectiolitical economist to accept such doctrines in an age that was continually more and more requiring large capital for the new large enterprises, which required able and energetic leaders and directors, who could not be evolved without large renuuicration. Ho sees very clearly and shows very vividly that a sustained and general attempt to bring in the reign of equality would require even a BENTHAM 215 more protligions effort than the audacious Jacobins made in their four years* memorable adventure into chaos ; that it would lead to universal poverty, and that it could only last for a day. §2 So far as to the general aim and tendency of Bentham's utilitarian philosophy. Let us enter now into some of the details of his chief book, the Principles of Legislation : and first as regards the main ends of government. The true aim of law and government, of the enlightened statesman and legislator, is the greatest happiness of the governed ; and as to this, with certain qualifications, political philosophers are largely agreed. And wherein consists their happiness 1 Chiefly, according to Bentham, in four things — subsistence, abundance, equality, and, above all, security ; under security, liberty, civil and political, being included. The end of the civil laws should be these four things, and of these four chiefly security, the protection of the person and of property, the fruit of the labourer's exertions. • As to subsistence, no laws are required ; the physical sanction alone, the natural consequences, sustenance or starvation, are amply adequate to induce men to labour, provided only that the fruits of labour are secured to the labourer by the laws against spoilers (including the rapacity of the government's own agents). Subsistence, the first end of law, is thus secured. As to abundance, the same principles apply, since abundance ia produced through the operation of the same motives as those which produce subsistence, or at least similar motives. Above all, it is promoted by the spirit of saving and accumulation, with the liope of employing these accumulations to produce additional wealth with a profit. In the economic sphere of production no laws are necessary, and the fewer regulations of industry the better. Those concerned know better than any government what favours production. Regulations and laws may indeed hinder and diminish production, as in former times they often did. The State here can do nothing but protect the labourer, and secure to him his fruits j but this 2i6 ENGLISH POLITICAL PHILOSOPHY is a real and an immense service, in doing wliich they have perhaps done everything. But a question arises here not treated by Bentham. How are we to measure the fruits of labour when the labourers are working for an employer, and not for themselves, as in manu- factures or mining or commerce? Again, how much of the fruits of lalx)ur of a small farmer, say, should go to the laiul- lordt So that to assure the fruits of labour to the lubouivi* is not quite so easy as would appear. It is roughly settled in the first case by contracts for hire at so much wages, since it is imiK)8sible to say how much is the fruit of an individual's labour; and in the latter, also by contracts, which usually transfer to the landlords any excess of farmers' proHts over the ordinary rate. But who can say that the exact fruits are secured to the labourers in either easel Ah to the next alleged end of the civil laws, namely, equality — that is, social equality and equality of property — it is, licuthum argues, a right and proper aim of government (as Roiitf-<<,fijii lu ' contended), and one that can be demonstrated as surely Uii ' clearly as a theorem of mathematics; but not by the vition.i methods of reasoning of Rousseau, whit.h postulated original c(|uality, and assumed and required that this primitive state should be restored. The equal division of wealth, Bentham thinks, would produce the greatest amount of happiness on the whole; his chief argument being that the happiness of the richer ones is not so much increased as the hap}>iness of the poorer sort is diminished by the unequal distribution. This depends on the well-known ])rinciple that increase in wealth is not followed by a projior- tionate in(;rease in happiness, though it may add something to the happiness. Put, says Bentham, on the one side *' a thousand farmers having enough to live upon and a little more. Put on the other side a king, or, not to be encumbered with the cares t)f government, a prince well-i)ortione(l, himself as rieh as all the farmers taken together. It is probable, I say, that his happiness is greater than the average happiness of the thousand farmers, but it is by no means probable that it is equal to the sum-total of their happiness, or, what amounts to the same BENTHAM 217 thing, a thousand tinips grentor than the average happiness of one of thorn. It would be reraarkahle if hia happiness were ten times or even five times greater." This is undoubtedly true anpy as a man with an assured competcnee in a congenial pursuit. Awordin«;ly, if the law took from the richer a part of their superfluity, which adds so little i)roportionately to their happi- ness, and whi(;h would certainly greatly increase the happiness of the poorer sort, or in this example the thousand farmers, the legislator would increase the total area of happiness. And it would be bettor to spread it equally over the thousand, on the saine principle that if one farmer got twice as much as another his happiness would not be so much increased as another's would fail to be increased. And this is certainly a true argu- ment, so far that all in a community should have the necessaries of life assured to them if destitute ; but which could not be pushed so far as Bentham pushes it, that an equal division all round would assure the greatest quantity of happiness, since the certain result of the policy after the plunder of the ricli would be, in future, diminished savings, diminished production, no abune unswia-i'd an fully as posnible — the questions of the origin and progress of law ; otherwise we are presented with the mystery of a most excellent device and great discovery for society, the condition of all other excellences, without having the origin an»l successive improvements i)ointed out and explained. In order the better to see the advantages of law we should try, lie tells us, to g"t a clear idea of property. This is not easy, because ''there is no image, no painting, no visible trait which can ex[)resH the relation that constitutes property. It is not material, it is metaphysical ; it is a mere conception of the mind." The chief element in the idea of property consists in " an established expectation" in the persuasion of being able to draw certain advantages from the thing possessed, an exi>ecta- tion wholly based on the guarantee of law. To take the simplest case (ami the one chosen by Rousseau), it is only through the protection of law that I am able to enclose a held, and to give myself up to its cultivation with the sure, though distant, exi^etation of harvest. There was, no doubt, a natural expectation of enj«»ying things even before law existed. Hut the eases are very few ami elementary : a savage (a hunter or u Usher) may hope to enjoy the fruits of his labours, if, for example, he has killed a deer, if other savages have not discoven'd his cave, or if he is stronger when they come to take it from him, as they will be likely to do (as HoblK's has said). lUil if you dispute this, and we are to HUpiMMe an agreement amongst savagi's to rospi;ut the acquisitions BENTHAM 221 of each other, hero \vc luivc in tlioso agreements the beginnings OK LAW ^ as heing the best for all in the long-run. Property and law arc horn together and die together. Before laws were made there was no property ; take away laws, and property ceases. Security in relation to property consists in the Law not defeat- ing expectations of enjoyment which it has itself encouraged men to form, and the rights which it has guaranteed. Ihit ]jerhap8 laws of property are good for the rich, had for the poor, as Rousseau and our modern communists have said. This is not so, Bontham thinks, for the poor man is much better off in our societies than the savages in the condition of nature j the lot of women is better, and childhood and old ago have more resources; the population is a "thousand times greater," a fact which alone proves on which side is the superiority in happiness (if life is worth having at all). "The laws in creating riches are the benefactors of those who remain in the i>overty of nature. All participate more or less in the pleasures, the advantages, and the resources of civilised 8<)ciety. The industry and labour of the poor place them amongst the candidates of fortune. And liave they not the pleasures of acquisition ? " This is certainly true in part. I3ut perhaps the real question rather should he whether the labour- ing class generally have dnhj shared in the blessings of civilisa- tion, and whether their material condition has improved in proportion to the general increase of wealth in moih'rn times. The labouring class are certainly far better oflf than they would have been had there been no laws protecting property ) but liave they shared in the new wealth and in the conquests of civilisation as much as the otlier classes? The answer is, that they have sliared the new wealth, and an ever larger number of them'; the level of wages having continually risen during the i>a8t hundred years. But they have not shared in those things that presuppose a liberal education as a necessary condition of their enjoyment. Nor is it possible or in the nature of things the majority of them can do so, but * Of customs rather, which is a stage before law. Locke l)clieved men Were ruled by such customs, and Rousseau followed liini on this iwiiit. aaa ENGLISH POLITICAL PHILOSOPHY only some uf theiUi who ure more fortunate than the rest, or naturally abler or cleverer. But, finally, they are infinitely better off than they would be under a system of equality or Communism, or even what we now call Collectivism ; all this in spite of what the Marquis Beccaria has said: "The right of property is a terrible right, which iHjrhaps was not necessary." Rousseau has said the same, but, as I have already said, he afterwards changed his opinion. But, short of its abolition, short of communism, proi)erty may be attacked. Bentham then analyses the evils which result from such attacks. Thes6. ure, first, the evil of non-possession — a negative evil j secondly, the pjiin of losing — a ix)8itive evil, the pain of deprivation. It is, as it were, taking away a part of myself — summing \ip the cares, the industry, the saving spirit and foresight, all which are objectified in the property, which is likewise the reward of all these ellurts. "Our pro- l>erty is thus a part of our being, and cannot be torn from us without rending us to the quick." Besides, after being once attacked, there arises inquietude as to the remainder, and, worse yet, as to what we have not yet acquired, but which we may acquire if allowed to keep and enjoy. This fear is formidable anil widespread, ami it has very extensive consequences. For why save and labour if the fruits are torn from me to the i)rotit of others, *'my enemies " 1 Besides, I may not have the means (capital) left, even if I desired still to labour. Of those four evils, the first and second do not extend l)cyond the particular i)erson8 plundered. But the third and fourth extend to those not yet attacked, that is, to everybody else. The alarm and the ileadening of industry extend to all, ami of course are all the greater the more persons have already been attacked. A whole nation may in this manner have the spirit of industry deadened permanently by a tyrannical government, Imd legis- lation, an intolerant religion, which drives men from the country, or "a minute superstition which stupefies them." The provinces of the Turkish empire, formerly under Roman rule, so flourishing, according to Bentham, have been im- ixivcribhcd solely by )m\ and rapacious government. BENTHAM 223 In Biirh countries the opulent arc first i)lumlered. At* length only what is necessary for bare subsistence is produced. But abundance being plundered, even the subsistence of some is endangered, owing to the fact that the superfluity of the rich is held as a fund for the subsistence of others. Turn to the other side of the picture and see what a grand result lias been achieved in North America. A whole continent reclaimed from a savage uncultured state, and wealth and commerce and population vastly increased, and all this within barely two centuries. What has wrought these prodigies? "The beneficent genius is aecurify." The existing distribution of wealth in each countryj how- ever it may differ in different countries, sliould }3C preserved by the legislator. Justice consists in its maintenance, and the great principle of security requires it. "How make another distribution without taking from each that which he has 1 And how despoil any without attacking the security of all 1 When your new repartition is disarranged — that is to say, the day after its establishment — how avoid making a second 1 Why not correct it in the same way t And, in the meantime, what becomes of security? Where is happiness? Where is industry ? " " When security and equality are in conflict it will not do to hesitate a moment Equality must yield. The first is the foundatioii of life; subsistence, abundance, happiness, every- thing depends upon it Equality produces only a certain jwrtion of good. Besides, whatever we may do, it will never be per- fect ; it may exist a day ; but the revolutions of the morrow will overturn it The establishment of a perfect equality is a chimera; all we can do is to diminish inequality." A revolution in government 6r a conquest might overturn property, and they have occasionally done so, but it would be only for a time. Soon industry would create new property, if only the principle of property be allowed. " But if i>ropcrty should bo overturned with the direct intention of establishing aa4 ENGLISH POLITICAL PHILOSOPHY au eciuality of pohsessious, tho evil would be irreparable. No more security, no more industry, no more abundance ! Society would return to the savage state whence it emerged." May our Collectivists and extreme Socialists of to-day, who have become enamoured of communism, meditate these words of lienthnm, the democrat and extreme Kadical I He goes on to show in remarkably vigorous and earnest and convincing words the conditions necessary to carry out a scheme of equality as well as the eventual consequences of it : — " If equality ought to prevail to-day it ought to prevail always. Yet it cannot be preserved except by renewing the violence by which it was established. It will need an army of inquisitors and executioners as deaf to favour as to pity j insensible to the seductions of pleasure, inaccessible to jHrrsonal interest; en- dowed with all the virtues, though in a service which destroys them all. The levelling apparatus ought to go incessantly backward and forward, cutting otF all that rises above the line prescribed. A ceaseless vigilance would bo necessary to give to those who had dissipated their portions, ami to take from those who by labour had augmented theirs. In such an order of things there would be only one wise course for the governed — that of prodigality ; there would lie but one foolish course — that of industry. This protended remedy, seemingly so pleasant, would be a mortal poison, a burning cautery, which would consume till it destroyed the last tibre of life. The hostile sword in its greatest furies is a thousaml times less dreadful. It inflicts but partial evils, which time eiraces and industry repairs." These words are not more striking than true, and the iuqwrfect attempt made in France for some three years to realise eipiality confirms them, while the march of social and industrial evolution and the greater scale and complexity of social facts would render any similar attempt now made still more disastrous, if possible, than in lientham's time. It is true, he goes on to show, that some small societies in the first ellervescence of religious enthusiasm haVe established communism and eciuality, but by no means to their incrwised happiness at first, while they tenn expectation, nor even prevent a contrary one. Laws are more easily known as they conform to natural expectations produced by previous habits ; but a law contrary to such expectitions is hard to comprehend, and more hard to remember. We do not naturally expect codes of ritual law, but we do expect those laws which are most im^x^rtant and necessary. Therefore the stranger who commits a theft, a forgery, a murder, may not plead ignorance of the laws of the country, since he must have known that these were crimes a3o ENGLISH POLITICAL PHILOSOPHY everywhere.*. Thirdly, the laws should be consistent^ a principle closely connected with the preceding, because analogous laws, which consist with the preceding principles, are presumed beforehand. That a man's projierty should on his death go to the next of kin is a rule generally admitted, and a law directing succession according to this would accord with natural expectations, and be universally understood. The more the law departs from this principle and admits exception, the more obscure and dilHcult it is to understand. The English common law allords a striking example of such departure in its complicated provisions, singular distinctions, and subtle judicial decisions regulating the descent of property, which are of such peculiar kind that no one could presume them beforehand. The result is tliut this part of the law is '* a profound study like that of the most abstract sciences, confined to a small number of privileged men. It has even been necessary to subdivide it, for no lawyer pretends to under- stand the v/hole of it." The fourth condition is that laws should be consistent with the jtrinciple of utility ; for expectation naturally presumes utility. True, what conforms to utility may be contrary to public opinion, but this is only accidental and temi)orary. The fifth condition is methoil in the laics^ gootl arrangement, otherwise there may be a difiiculty in understanding and remembering them. " Both the style and method should be simple ; the law ought to l)e a manual of instruction for each indiviilual, and everyone should be enabled to consult it in tloubtful cases withoiit the aid of an interju'eter," — a consummation devoutly to be wished, and which llobbes in his Leviathan had pointed out as a desideratum, but whieh we are as far as ever from attaining. Perhajw, as Sir Henry Maine points out, it may not be so easy as Bentliam supposes to make the law cognoscible to * In liko inanucr iu Uoiuau law, none, evuii thuse to whuiii igituiuneo was alluwuil as a plea, could plead i^noraiifc whi'ii the art I'urliiddeit waH contrary to the Law of Nature. But how could the stranger know that they were crimes everywhere unless from his moral nature i for we nmst not assume that he is neeesfurily a believer in lientham's theory of utility. In fact, all that he says hero about "natural cx|»cctation8 *' U an uitcunseious testimony in favour of Natural Law. BENTHAM 231 the gonorality, owing to the increasing complication and diffi- culty of facts in our increasingly complicated modern life. There is a sixth condition in order to control expectation. The law ought to appear to the mind as certain to he executed^ or at least there should he no reason to jiresinnc the contrary \ a rule which condemns a multitude of mercantile prohihitions, because the rules are easily eluded, with the result that they "become a lottery of immorality, in which individuals stake money against the legislator and the custom house." The seventh and last condition requires that the laws be literally f(»llowed, that the literal sense of the words be taken, and not the interpretation of the judge, who might put quite a different sense on it, and who, under the pretence of interpre- tation, may substitute his will for that of the legislator, while at the same time he may make suitors liable to his caprice or partiality. Such are the marks of good laws : utility, consistency, facility of being known, probability of execution. If now the laws which concern everybody were in one volume, and those which concerned only classes were in small separate volumes, if the general code had become, as with the Hebrews, a part of worship and a manual of education j if a knowledge of it were required as a condition of the franchise, the law would then be truly known, every citizen would become its guardian, its violation would not be a mystery, its explanation would not bo ji monopoly, and fraud and chicane would no longer be able to elude it. Further, as Hobbes also desired, the style of the laws should be as simple as their provisions, or if it differed from that of other Iwoks it should be by greater clearness, familiarity, and precision, because it is designed for all, and chiefly the least educated class. Our laws, indeed, are very different from the model he lias sketched. But in spite of that fact he affirms that, with all their drawbacks, they have produced incalculable good. We are indebted to the laws, such as they are, for all we enjoy of security, property, industry, and abundance ; for peace Ijetween the citizens ; the sanctity of marriage, and the " sweet iwrjietuity 232 ENGLISH POLITICAL PHILOSOPHY of familiies" — a higli and fur the most part a true eulogium, but whicli, in liis Judicial Procedure and elsewhere, he con- siderably attenuates. §8 There follows Part Second on the distribution of property, in which he first enumerates the titles to proi)erty, namely, actual possession, which includes the right of the first occujHint, ancient possession in good faith, or prescription, jjossession of the contents of land and of its produce, possession of what the land supports, such as animals (accessio of the Roman law), or what chance lias thrown upon it, possession of adjacent lands which gives a claim to land from which water has retreated ; amelioration of one's proi>erty, })08session in good faith with amelioration of another's property. To those lie adds the right to fish in great waters, and to hunt on appropriated grounds ; but not the latter when most of the land is cultivated, there being reasons then against this right of chase in the various inconveniences of allowing it, — in particular tliat of encouraging a class of hunters likely to be poor, and temi)ted to breaches of the law. A title to property is also acquired by the owner giving up its enjoyment to another, either as a pure gift or in exchange, or to ward oif an evil, or to acquire goodwill. Every such alienation is a good to both parties, the giver and receiver. iJiit tliere are exceptional cases where exchanges may be invalidated owing to concealment, fraud, coercion, subornation, error of law, or error of the value of the articles exchanged, incapacity to make the exchanges, inconvettience to the pn))lic, want of right on part of the conferrer. Alienations in general are good, yet restraints on alienation of land everywhere prevail, and for three causes, — to prevent Ijrodigals from parting with it, to support family pride, and to gratify the love of power, the desire of ruling after death ; the latter l>eing the cause of all foundations. A title to property is also acquired by succession after death to the goods of another, and this by the law of intestate succession as well as by the making of testaments, lientham BENTHAM 235 objects to the existing law of intestate succession, and proi^ses one of groat simplicity, intended to favour equality, the chief feature of which is that the children should take in equal shares, and, failing children, that the immediate ascendants, father and mother, should take equally, and, failing them, that no more remote ascendants or collaterals should inherit, not even the uncle, but that the public treasury should benefit. Collateral relations may be poor, but no expectations have been formed by them, and so no injury would bo done them. The section on testaments is a good one. He is in favour of freedom of bequest on account of its utilities, its promoting of virtue in families, and for the benefits it secures to the party who can make a will, whicli secures the respect and gratitude of children to parents in the decline of their life. Still lie is partly in favour of the French legitime (derived from Roman law), by which no child can be disinherited, but must have a portion secured unless for grave causes specified and proved. And if a man have no near relations, but yet wishes to benefit a faithful servant or dear friend, ho would allow a certain liberty of bequest to the extent of at least one-half of his property, while the other half is reserved to the public, otherwise you tempt such a man to spend his money before his death \\\)0\\ himself. There follows a short chapter on the rights to services, in which he proposes to make it an offence not to render a service U) another of great benefit to him, which would cost very little to the doer, and in which also he treats briefly of contracts and the considerations which make them invalid, which are the very same as those which make exchanges invalid, and for the same reasons. As every exchange of property imports an advantage, so every exchange of services is mutually advan- tageous. He concludes by contrasting his doctrine of obligations resting solely on utility with the long and laboured accounts of previous philosophers resting on natural rights, conscience, etc. He is very much against tenancy in common, and rejoices at the division of the commons of England, where " harvests, flocks, and smiling habitations have snccoeded to the dull sterility of the desert." a34 ENGLISH POLITICAL PHILOSOPHY §9 We have now given the reader all of tlie work which speci- ally concerns our suhject of political and moral philosophy. What -follows concerns the student of law chiefly, the part which relates to the rights and ohligations which belong to the several private conditions, or what is called the Law of Persons. It is easy and readable, but there is not much new and imi)ort- ant in it except where he asks for greater freedom of divorce on the grounds of his principle of utility. The remainder of the book, entitled the Principles of the Penal Code, containing his classification of oli'ences, his reiucdies against oilenccs, his theory of punishment for oli'ences, with the indirect means of avoiiling them, though well deserving the careful study of the philosophical lawyer, the law reformer, or even the special student of jurisprudence, does not much concern the class to whom these pages are addressed or the subject of which it mainly treats. It is rather the civil law, and uspt'cially that part which deals with ends of civil government with which we are concerned. Of this I have given the reader a rather full analysis, but a comprehensive review of the whole is desirable, and may be instructive to the serious student. According to lientham, legislators should aim at the happi- ness of the community, more precisely at the greatest happiness of the greatest number. But happiness, from the legislator's point of view, consists of four things — subsistence, abundance, equality, and security. As to the two lirst the task is easy ; nothing is necessary but to leave alone. iJo away with all existing restrictions, regulations, shackles on foreign trade or homo industry. Leave those chietly concerne«l who liest kni>w their own interest to follow it as they please, anil by so doing (in the industrial sphere) they will best promote l>oth their own interest ami the general happiness. Such was the teaching of Adam Smith, adopted by Bentham and English statesnuMi tluring the early part »»f this century. There was much truth in it, but also errors which time dis- closed even before llentham's death, in 1832. It led to great evil, to oppression and cruelty to the young, t«» the tlegradation BENTHAM 235 and physical deterioration of the labouring population in factories, workshops, mines, etc. And hence there came a call for regulations of a new kind and interferences with freedom of contract, limitations of working hours for women and children, and factory legislation generally. It thus appears that, both by interfering and by not inter- fering, Government in the economic sphere may diminish the general happiness, and that it requires a very skilled inter- pretation of history and experience to know what laws to make and what to avoid, though it might be agreed that the tendency to advance the general happiness is the test, however difficult it be to trace and to measure it. Setting aside, then, these first two objects, we come to the great aim of government, the promotion of security — security for the person, property, reputation, political liberty being include*! under security. Government should protect property, and ho gives excellent reasons why it should. But how does it protect property? By creating legal rights that are for the general gootl ; rights to use, in many cases to exclude others from using, to give, to alienate, to destroy, to bequeath within limits. But how can Bentham tell against the com- munists, without history and the long human experience, that those rights are for the happiness of the greatest number? It is history that best shows that communism is inq^ssible with all advancing communities, and this conclusion is fortified from principles of human nature which show an instinctive tendency and leaning to proi)erty, as well as to freedom of contract. The historical aspect of the question, how far the universal Iniman experience has shown property to be necessary, Bentham has not examined, or only glanced at it in the exceptional case of the monasteries. The other and greater gap in his theory of legislation lies in his denial of natural law and natural rights. He distinctly aflirms that these are "fictions"; though he speaks of "all the general inclinati(ms of men, all those which appear to exist independently of human societies, and from which must proceed the establishment of political and civil law," as pro- perly called law« of nature. All legal rights he affirms to Ik? a36 ENGLISH POLITICAL PHILOSOPHY the creations of law, of the sovereign, without which they have uo existence, or such a feeble and momentary existence as to amount to nothing. Though it is certain that nearly all rights now called legal have existed and been protected under a regime of custom before law or the State, in Bcntham's sense, existed. Custom, he would say,* is a kind of elementary law ; but why are the customs as to property so much alike at all times and places, if not because men's natures are funda- mentally the same and their circumstances with respect to providing themselves with sustenance from the earth very similar ? A ** feeble and momentary exi)ectation " of property he allows may have existed before law ; as well he might, Locke, and even Blackstone, having already said as much and more. He gets no further than Hobbes, who declared that property was the creation of law. liut Holibcs believed in natural law and natural rights, only that in the state of nature they were overridden in the universal reign of might, so that they became of none effect, were worth nothing till the State and a common coercive power was formed, when some of the natural rights that already potentially existed, though overborne, were taken up by the sovereign, defined and protected by the law, and in that sense were " created." The real fact is that the legal rights are based on earlier natural rights — rights to property, liberty, reputation, marriage, fulfilment of contract, and family rights; rights which each one instinctively assumes, which others instinctively recognise as natural (though they may occasionally violate them); at first instinctively felt and acted upon, but later on consciously perceived and reasoned upon, being specially involved in a unique, implanteil feeling, the original germ of justice. " This land is mine," as the first discoverer or first possessor ; "This bow is mine," because I have spent my labour and time in fashioning it — feelings rather vaguely felt than reasoned about, or expressed in distinct, logical propositions, but which are so instinctive and immediate that the attempt to disturb possession was instantly resisted, while it aroused another and very distinct feeling of resentment, a sense of ' Tlicury of Lcyiulatiuii, i». 113. ' BENTHAM 237 injury or wrong done, and a desire to punishment; in fact, all that law afterwards builds upon in taking the protection of property and redress for violation of its rights into its hano left nlono. In this way he may bring disaster or slow decay; on the other side ho may run counter to our ideas of justice and natural right, and thereby teach the i)eople the lesson, especially dangerous in a modern democracy, that might, not justice, is right ; the might being identitied with numerical majority. § 10 In the Principles of Legislation^ IJentham liad intended to set forth the principles of an ideal code, civil and penal ; and if a constitutional code and an international code had been included, we should have had a complete scheme of jurispru- dence, of an ideal jurisprudence or model, to which actual codes or actual bodies of law, if coditied, should conform. BENTHAM 239 There had long floated before his mind sucli an exhaustive scheme of a complete code of laws, together with subordinate codes, maritime, military, ecclesiastical. This code was to apply ten that in the making of the digest some reform in the law would result; some of the absurdities and contradictions would dis- appear. Tlie result might not be an ideal and complete code, but it would be a great advance on the huge chaos of Knglish law, which is unknown to the people, unknown even to the professional lawyers, but which nevertheless the people must shape their most importiint actions by at their \wti\. Others in Kngland, like Sir S. Romilly, advocated codifica- tion, but the time was not opiM)rtune or ripe for such, especially as eminent authorities on the Continent, like Suvigny, objected to it that it might stop the spontaneous growth of suitable laws. English law was too full of glaring evils and anomalies, iJen- tham believed, fur lawyers to allow the flash of light on it that codification would shed. Besides, the Tory Government wanted neither light nor law reform. So Ikntham turned his eyes from his own country to the United States, and in 1811 address(Ki a long letter to tho President of the United States, oireruig to codify tho actual laws of the United States, both the unwritten and statute laws, in accordance with his general scheme. Finding no response for a long time, he then applied in a very dill'erent quarter, namely, to Alexan toiicli the c(^n8titntional law of the United States. It was, he said, wholly admirable. Still, for reasons of symmetry and eompleteness, he would like to inrhido it in his code and to throw over it the proper justification of reasons, to give it his benediction on groimds of utility. lUit suppose here, too, on a secret com})arison with his own ideal constitution, it appeared to sufler by the comparison, it is not unlikely that his private opinion of a weakness in some place would let itself peer out, perhaps to the future l)rofit of the constitution, meantime to the scandal of all the devout worshippers of the constitution, the most sacred thing in America. His oti'er was not accepted. It appeared too large and risky to some politicians ; to the lawyers, a visionary and impracticable thing. He was much disappomted. lie had, he said, a real relinh for the work. And now that he had delivered himself, or nearly so, on parliamentary reform, what else was there for him to do 1 A prominent public man in America tried to con- sole him, informed him that his labours were much appreciated in America spite of the refusal, and finally gave him a good piece of advice, to write a philosophy of law, a work on jurisprmU^nce as it should be, something after the example of Adam Smith's Political Eronomy ; or, he said, construct your complete ideal code without caring whether actual systems take it up, without reference to the actual laws of any country, and let it work its way. Such a work could not fail to have fruit This was excellent advice and to the point. And the fact is, what Uentham mainly wanted done iminediately by a State submitting its laws to the mould of his plan and making a tremendous experiment and full of risk, has been largely done in a slow piecemeal fashion by the lawyers themselves, on whom he was so unjustly severe for preferring, as he accepted by you ; you shall be & people of conquerors. ... To the conquest to which you are here ipvited no ultimate limits can be assigned other than those which bound the habitable globe. To force new laws utK)n a reluctant and abhorring people is, in. addition to unpunishable depredation, the object and effect of vulgar conquest ; to lM»hold your laws not only accepted, but sought after— sought after by an admiring people— will be yours." . 246 ENGLISH POLITICAL PHILOSOPHY alleged, their professional interest to that of tlie public. It has been done by them and by the government, but only after parliamentary reform ; and if lientham were now living, he would see much of his ambition realised. His influence has prevailed not only in England, in the rising English colonies, in British India, but very largely in the United States of America; and heri'in lies his chief glory. And the very co really so, that what is supposed to be such should be in such a shape that the democracy could comprehend it. Then they would be in a iK)sition to give their assent or dissent, and then the laws assented to might be truly said to bo the expression of the will of the sovereign people. But it would be absurd and paradoxical that it could not know what in theory was the expression of its own will. * Sheldon Amos' Scituce of Lnv\ p. 383. III. ON CONSTITUTIONAL REFORM Let ua now consider his views on the English Constitution, for the reform of which he was a vigorous and successful pleader. As to forms of government, he accepts the usual division into absolute monarchies, aristocracies, democracies. Of these the first two are incurably bad, but aristocracies are the worst. In l)oth, the general interest is sacrificed to the selfish and " sinister interests," — in the first cavse of the governing one, his instruments and creatures, in the second of an irresponsible confederacy and its dependant«<, who together plunder the people and oppress and insult them if they murmur. They are both illegitimate government'', because the true object of governments, the greatest good of the greatest number, is necessarily sacrificed and set aside for the good of a few. The second is the worst, because • an absolute monarch, if virtuous, might abdicate or restrict his prerogative or even introduce democracy, a thing which is "on the cards," and there arc at least instances of absolute rulers alxlicating in favour of another like themselves. A Charlea of Spain, a Christina of Sweden, have done so, but who ever heard of an aristocracy abandoning the least particle of power 1 The actual government of England in the year of grace 1817 (the time when Bentham was writing on constitutional reform) was an " aristocracy-ridden monarchy," combining all the evils of both. It was the worst possible government, the farthest from having .the peculiar excellences of monarchy, aristocracy, democracy, which Wackstone claimed for it. It was not a limited monarchy; nor was it a government with nicely-balanced powers of king, aristocracy, and people. Such a balance is impossible in itself, as it would imply no motion «47 348 ENGLISH POLITICAL PHILOSOPHY or perpetual deadlock. In reality the great body of iha people were unrepresented in Parliament, while the Huiall part said to be represented were not really so. The majority of the seats in the House of Commons were under the control of 207 jwwerful j>ersonH, peers or great landowners, and for the remaining seats, which were not properties, the members were returned by corrupt electors. Judge therefore how far the people of England were represented. The government was a usurpation. It had nullified by bribery, corruption, and the terror exercised by powerful landed mag- nates, the original political power of the ])eoplc constitutionally granted and exercised. The suffrage was in former times much wider. There had formerly been annual Parliaments. After the Revolution of 1688 they were triennial. The Septennial Act, by which the Parliament of George i. in 1717 prolonged its own existence, was an unconstitutional usurpation of power. And this usurping government, with its unconstitutional origin maintained by corruption, rested finally on militiiry fon;e and not on the consent or affection of the people. Here in brief is his theory and history. Let us consider the first a little closer. His argument is that an absolute ruler must, at all times and wherever he rules, have an interest adverse to that of his peojile ; that the interest of the ))eople is only coincident with that of its governors in a representative democracy, where the people elect them, or elect those who appoint others to govern ; that absolute government must be illegitimate and even immoral when tried by the test of utility, the test of the greatest happiness of the community, the only true test. Ix>cke also, as we have seen, maintained that an absolute monarchy was not a legitimate government, but his reason was different, namely, that the people could never have made an original contract conceding absolute powers to one num. That the argument of IJentham is unsoiunl has been shown indeed by Mill, who points out that there was a complete identity of interest between ruler and ruled in the time of Henry viii. and Queen Elizabeth, l)oth of wliom had the same main objects at heart as their peojjle. And is it not perfectly clear that an absolute n^onartjli may be the very best possible BENTHAM 249 ruler for a somi-civilised or an uncivilised people? In any case no other is possible for certain races, no other would be endured by the people themselves. The despot is the expression of their will. His will is their inmost will as to matters of government. In fact, here democracy and autocracy coincide. The people desire a single absolute ruler. It is their inmost wish to have siich, and not to hav«» any other. It is representative govern- ment, too, of a kind. He is their representative, only one witli- out mandate or instructions. As it is the government they most wish, it is evidently legitimate. It is equally clear that a de8]K)tism like that of Peter the Great is the best for the happiness and still more for the improvement of a backward people.* Clearly the interest of a great and good monarch like Aurelius or Solomon is coincident with that of his people, and so very mucli BO that such a one has sometimes greatly increased the general happiness through his capacity and virtue. Bentham's reply would probably be,^ Yes, a good king may appear, but he is rare. The class of king is bad ; the majority are bad, and in jK)litical and moral subjects it is the characteristics of the majority that concern us. Well, then, let us take the majority of individual rulers. They will be neither capable nor virtuous ; through their egoism or vice or folly they will prove hostile to the general weal. In fact, his view is v£ry much that of Samuel the prophet when he laid before the people of Israel the evils • that a king would bring. But we find the people would not hear him, but said, ** Nay ; but we will have a king over us ; that we also may be like all the nations ; and that our king may judge us and go out before us and fight our battles " : such were the advantages they expected. Kings are, in fact, natural chiefs — originally the best leaders in war, and otherwise the ablest or wisest. They were first chiefs of small groups, then of greater and greater ones through successful -wars, till at length we come to a Sennacherib the Great,^ king of kings. So it ' Sec on this Mill'i Logic^ vol. ii. p. 480. ' Sec his Letter to Lafayette, and the Citizmn of France, • See Spencer's Sociology, vol, ii. ; and Maine's Early History of Injtti* (tUions, chn>. v, aso ENGLISH POLITICAL PHILOSOPHY was witli the Assyrians, Babyloaiann, Kgyptians, and inoBt of the historic peoples. Greece was a bort of exception. There were kings tot and then democratic government in cities. And Rome became a republic after the expulsion of Tarquin, and flourished greatly as a republic. Ihit she could nut last as a republic ; nor could Greece. And under the Kiupire were there not princes with no sinister interest? For a hundred years, the most remarkable in the history of our species, as Kenan says in his MarC'Auvi'le, there was, owing to the departure from the hereditary principle and the substitution of the admirable principle of adoption, a unique series of great princes, — Nerva, Trajan, Hadrian, Antoninus Pius, Marcus Aurelius,— during which Roman law was impi'oved and perfected in the way ilesired by lientham, slavery mitigated, natural justice and humanity aimed at, manumission of slaves favoured, philosophy encouraged, and in which the prince was the lirst and hanlest workman in his empire. Did we not see again a Julian, hero and jihilosopher, first in war and first in wisdom, born to rule men for their good, had not the fatal Parthian spear too soon cut short his wonderful career? Of course, when rulers become hereditary, ability is only an accident. Hut it was a hmg time before they became hereditary. Not always the son but the ablest male agnate succeeded in turbulent times. iJentham's objection only applies t*) some hereditary kings. It does not apply to an able and good dcs[)ot in early ages, or oven now to such a one for certain ])eople. The arguuumt of licntham breaks altogether down on appeal whether to reason or to history. The rule of the one ablest man is the earliest, the most natural, and the best for the greatest happiness of the greatest niunbcr. llobbes was right on this i)oint. Ihit it only applies in the case of an a))lo and good man, and under the hereditary principle it is only an accident, and a nire one, if the king is an able man. The majority will be of barely average ability and virtue. And now, to take our own case, what has really happened in Kngland, omitting rather transparent fictions ? Our sovereigns since the time of William ill.,* with the exception of (Jeorge in., have ' Sec OH this jioint llalluiu'a Couiit. Jiiaturi/, c\\a\>. xvi. BENTHAM 251 gradually allowed their share of the sovereign i^ower or pre- rogative t^).dwindle, till now it amounts to little more than zero. But it was not so in former ages. During the whole period of the Feudal ^ronarchy, that is, from the Xoruian Conquest to the accession of the Tudors, if the king was an able man, — and there were an \musual number of able kings owing to the occasional departure from the strict rule of succession, — if he was aa able as Henry ir., Edward i., or Henry v., he enjoyed ample authority. Nor does tliis appear to have been used to the detriment of the people's interest. Excessive taxation to support foreign wars they sometimes complained of. Still these wars against Franco or Scotland were generally popular, espe- , cially when successful. When the people rose in rebellion, it W51S rather the abuses of the nobles' power than the exactions of the king they complained of. It is certain that Henry v. and Edward iv. were popular, though both were allowed to have very much their own will. It is certain too that the strong Tudor sovereigns were popular, and that Henry viii., the most despotic of all, was the most popular, because the people regariled him as their protector against the arbitrary practices of the nobles, — in particular their clearances and en- closures. But the Tudor sovereigns were unusally able. The Stuarts that followed them had neither their ability nor dis- cretion. They one and all wished to be desj>otic in an age when the spirit of liberty had been widely aroused ; and they wished to force their subjects' conscience on the matter of religion, tluring a dentury when religion was considered the most im- portant and vital of all interests; the final result being that James n., in spite of his large standing army, found himself opposed to the majority of his subjects both in England and Scotland, and by his own folly forfeited his crown, and tlio ample prerogative he might otherwise have enjoyed. Let us now consider his argument against aristocratic govern- ment. Why is an aristocratic government bad t for the same reason that a monarchy is bad. It must be carried on at tlie expense of the general weal. An aristocracy mti«t regard only its own interest, and this interest must be hostile to the general interest wherever there ib no responsibility of the governorfl to 353 ENGLISH POLITICAL PHILOSOPHY the governed. Only where there is responsibility tian there be this identity of interest and coincidence of will between rulers and ruled; and this is only possible in representative government accompanied by certain precautions. Such is his theory ; a deduction from human nature, assumed to be selfish, and from class selfishness which follows from it. There is also the assumption, as Mill iK)iuts out, that identity of interest can only be produced by responsibility. But history does not bear this out in the case of kings. How far does it eonfirm the theory in the case of aristocracies ? Twice in the history of Kngland the aristocracy have been the ruling power. From the Conquest they were powerful, but from the death of Kdwanl in. to the accession of the Tudors, that is, for a humlred years, they were nearly all-powerful. They dei)osed Richard ii. and raised Henry iv., and very nearly ileposed him again. They deposed Henry vi. and Edward iv., and restored both again ; made Richard in. king, and again, after Bosworth, Henry vii. When there was a strong king, an Edward i., Edward in., or a Henry v., they loyally followed him to Scotland or France in his wars. When there was a weak one, they regularly conspired, ami a few of the most powerful when united together were able to pull down and raise up such kings. Usually in these combinations there was one presid- ing, one commanding spirit, a Simon de Montfort, a Percy, a Neville (Warwick, the king-maker), whose will governed all; so natural is the tendency to the ascemlency of one. lUit the aristocracy, so far considered, were rather controllers and choosers of the king than themselves the supreme power. Certainly when they interfered successfully they were sui)reme, but they resjKJcted the hereditary principle, and after the exercise of their sovereign jjower they returned to their allegiance and their normal role, or merely acted as chief ministers or advisers. But in another sense they ruled very ell'ectively ; in their own castles, over their own territories or fiefs, they ruled by the very essence of the feudal system. There they were autocrats rather than aristu'rats. Far away from the c(»urt or capital the feudal nobleman was a king, although but a petty king. He ruled his vassals, men-at-arms, serfs, tenants; he protected, BENTHAM 253 sometimes i)lnn(lorcrs of the middle class and a small fraction of the nobility, concjuered the king, the aristocracy, and the gentry. At their own profession they were beaten, chiefly, it must be allowed, because of the religious enthusiasm of the Puritiin Hnldi(;rs ami the great ability of twt) or three of the generals who led them. A Htrange and t<»tally unforeseen thing resulted, — an English Republic was proclaimed. The House of Ijords was voted to be ** useless and dangerous"; while some i)f the nobility, hicluding the luiil of Derby, whube ancestor BEKTHAM 255 was a " kingmaker " nt Bosworth, and the Duke of Hamilton, were executed. This was the nadir of the fortunes of the KngUsh aristocracy, from which many at the time thought it had sunk to rise no more. But tliis was a great mistake. For after tlie most extraordinary and dramatic twenty years of English history, in which a king was executed, ami an English country gentleman, who had conquered the three kingdoms, took his place with even greater authority, governed Englanil w(>ll, and died peacefully in his hed, — to save England from anarchy or a new dictatorship to which things were drifting, as the sole resource, and as it turned out to the general joy, Charles ii., the son of the executed king, was re^^tored, and the English nohility again raised their heads. The House of Iy>rds was restored anowcr, though the House of Commons was and continued to l)c the pre- dominant House. At the Revolution of 1688 they got another grand chance, when a certain knot of Whig nobles played successfully the old game of king-making. They invited over the Prince of Orange and proclaimed him king on the flight of James 11.; as a consequence, they mostly, hut not always, enjoyed the confidence of William iii., and had the great offices of St{\te. On the death of Anne a like confederacy of Whig peers, the most prominent being Shrewsbury, Argyle, and Somerset, brought over the Elector of Hanover and proclaimed him as George i,, King of Great Britain, France, and Ireland ; and from that time the power of the aristocracy was again the supreme jMiwer in the State. A Whig oligarchy nded with slight intern\ission till the French Revolution, and then a Tory one till 1832; but it was by a historical accident more than by intrinsic social power that they ruled. If James 11. had not threatened the religion of liis subjects his line would in all probability have continued to reign, and with little abatement in the king's prerogative. But George i. and George ii. had to lean on the Whigs, and had to purchase their support by- parting with most of their sovereign attributes to the " Revolution families." George iii. indeed gave the Tory party a chance, and very skilfully, for one with only moderate abilities, played 256 ENGLISH POLITICAL PHILOSOPHY utr uim against thu uther. Alternately the Tories (joined with the king's men) and the great Whig families were called to form a Cabinet. Once there was a coalition. In 1785 the king ai4)ealed to the country, and got a great majority in his favour. Henceforth the Tories and Court party ruled, and especially after the social hurricane in France, which made Whig and Tory nobles, as well as the country gentry of both parties, close ranks. There were only two divisions, as Burke said, Tories (including the Whigs, who had gone over to them) and Jacobins, those who favoured the new ideas in Franco. The king, however, still managed to retain a fair share of jKJwer until his illness in 1810, when the Prince Regent succeeded to the like share ; but being less desirous of governing, he gradually let some of his prerogative slip from his hands throiigh desuetude. And thus it was substantially true when IJentham wrote in 1817 that the government of England was an "aristo- cracy-ridilen monarchy," though it was more an arist(x;racy than a monarchy. If we inquire into the causes of their power throughout this long period other than the historical accidents above mentionetl, it will be found to lie in their great estjites. Unlike the feudal barons, they could bring few retainers into the field ; but they still owned the land, ever more antl more aggregated by the purchase of smaller properties both of impoverished yeomen and the smaller gentry, as well as by vast enclosures of connnon land. The landed interest was far more importiint than the manu- facturing or conuaercial. The great trading magnates and millionaires had not yet appeared. The landowners were the only very rich class, if we leave out the smaller class, who mad»! great fortunes out of the plunder of India, the " Kast Indians " as Burke called them. Then the landowners controlled the country seats by their "sinister" influence over tenants, and with their wealth they could bribe the other voters. Besides, they had jMHiket Ixjroughs, seats which they could present to I>oor men of genius like Burke, thereby securing an infusion of much needed ability. Some iK)wer nmst govern. The nobility got their second chance under the First and Secoml Georges. They had the real BENTHAM 257 elements of iM»litical power, in the shape of social prestige and wealth, large and increasing rent-rolls ; and it would have required a Gustavus iii. of Sweden, an able soldier and a somewhat unscrupulous man, to unseat them, as Gustavus did his nobles. George iir. ceaselessly struggled to limit their power and to increase his own ; and had the American War turned out otherwise than it did, it was feared by the Whigs, including Uurke, that ho might have succeeded. The French Revolution, however, came and fused the interest of king and aristocracy by turning all but a few of the latter into Tories. Such in outline is the social and political history of the aristocracy in England. And now was the general interest, as a fact, sacrificed during these two periods of aristocratic ascendency? Take the feudal period. They only exerted their influence when there was a bad king ; when there was a strong one they loyally followed him j that is, they were controllers rather than rul6rs. Still they wielded the king- making powers, and were in that sense sovereign during the century that ended with the accession of the Tudors. In their own baronies, over their own dependants, retainers, serfs, or tenants, they ruled autocratically, like small kings. IJut it by no moans follows their rule was bad or that they sacrificed the interest of their dependants to their own ; on the contrary, no other scheme or type of rule was possible. It res|»onded to the social necessities of a turbulent time. The lord gave pro- tection and the means of subsistence ; the dependants military service or other agreed-upon dues. Tlie relation was founded on loyalty on both sides ; the service was perfect freedom when the lord, a Warwick or a Northumberland, was jwpular and gracious. He or his followers might have treated the burghers of the town near his castlo with haughtiness, might have been soraewliat rough in his methods, hard in his bargains, severe in his exactions, and those were the only jmrt of the i)0pula- tion whose interest appeared other than his own. It was his own interest that the whole feudal group should be happy and contented. Warwick's |>ower loy in his popularity, and the majority of hifl retainers ot Middleham did not think their interest and that of the chief other than the same. Moreover, 17 as8 ENGLISH POLITICAL PHILOSOPHY the nobles were the absolutely necessary leaders of the i>eoplo in war, whether for their party or their country, whether, of foreign invasion or to prevent the country being invaded ; and here again the identity of interest between them and the rest of the nation is evident, so that on the whole an "aristocracy-ridden monarchy," to use lienthani's phrase, was the best possible government, and the only possible goveriinient for the Middle Ages. So ilangerous are general and absolute propositions respecting aristocracies, drawn from supposed principles of human nature, and taking no account of changing liistorical circumstiuices. lint the aristocracy ruled far more unqualifiedly during the eighteenth century up to 1832. Was this the best and the only possible government? It was not iiecessary. It was by an accident that need not have occurred, that did not occur in other countries, that the aristocracy, or rather a small section of the Whig aristocracy, governed England for a time, and by a like historical accident that the Tory aristocracy afterWanls ruled. Powerful they must have been in any case from their great wealth and social position, but they might conceivably have been excluded from the supreme rule and government by a strong and able monarch appearing. They were not essential, as the feudal barons were, as military leaders; the Great Civil War had proved that great leaders, soldiers and sailors, may be found in all ranks. ]5ut they were the most likely to have influence, whether the king was strong or weak, especially after the temporary overthrow of both royalty and aristocracy in 1649. An alliance was rather to have been expected between both as having a common interest against democratic tendencies ; and this occurred, but especially after the French Revolution. So that when lientham described our government as an "aristocracy-ridden monarchy" in 1817 he was substantially right, only that it was much more of an aristocracy than a monarchy. Was aribtocnicy a bi\d government during this second period of rule? Did it necessarily sacrifice the interest of the grciitest number to its own ? I think that durii»g this time there was truth in the genend assertion of lientham, that they BENTHAM 259 wKTifuHMl tho general interest to their own ; that they ruled by corruption, put their friends into all good offices, made places for them with salaries paid out of the public taxes, neglected the higher interests of science and literature, kept back talent because it was not their interest to bring it forward and employ it in the public service, though it is the interest of a wise nuwiarch to do so. Then their wars were mostly unfor- tunate, till the Great Commoner, one not from their ranks, broke the tradition, selected soldiers, like Wolfe, for ability, depressed Spain and France, and conquered in India and North America, though much of the latter was afterwards lost by their incompetence. Moreover, they passed P^nclosure Acts and Corn Laws in their favour, depressed the yeomen, raised rents when they could, looked down upon and discouraged trade, manifested all tho pride and haughtiness which is the besetting sin of aristocracies according to Montesquieu ; that " contumelious greatness " against which Hobbes warned all of their eluss. §2 It must then bo conceded to Bentham that in 1817, when lie attacked it, tho government by an aristocracy was bad and corrupt, and that the general interest was sacrificed under it. The people of Kngland suffered under this aristocratic govern- ment, and they were justified in seeking a remedy. What was the only remedy at once real and effective, according to r>enthamt Parliamentary reform, first of all ; extension of tho suffrage so as to be all but universal, with certain precautions tf) make it a free and therefore a true suffrage, an expression of the real will and wish of the people, instead of one extorted by fear and corruption; secondly, a limit to the duration of Parliament, so that members who betrayed their trust or neglected their duties could bo soon dismissed; thirdly, the selection of able and honest men, distinguished for " probity, intellectual ability, and active ability," pledged to regard the general interest instead of the partial and sinister interest of the actual ruling few. If this were done, if the representatives of the people in the House of Cohimons advocated the interest 36o ENGLISH POLITICAL PHILOSOPHY . of the majority, the people would have, as they ought to have, a real ascendency by their control of that House, which was the most powerful. More precisely. Bentham advocated virtually universal suffrage, excluding only . minors, persons of unsound mind, persons unable to read, perhaps soldiers and sailors, and perhaps women ; secret votes (i.e. vote by ballot), this being necessary as a guard against intimidation and bribery ; and the most important condition of all, annual Parliaments, because the ** impermanence " of their seat would be the greatest check on members' abuse of their trust ; it would lead to no evils of any consequence, and it would accord with ancient usage, broken by tyranny and afterwards by usurpation of powers by the House of Commons (of 1717 in the Septennial Act). To these he added practical equality of voting, that each vote should have equal iuHuence, including something approaching to a redistribution of seats according to population, and only a vote for a single constituency j in a word, "one man one vote." To conditions affecting the electors he af the people, whose mamlate should not extend beyond the scope of its terms. Too much dependent in fact on the will of the electors he would make them, the majority of them, being ignorant BENTHAM 261 men, necessarily looking to their own interest, and apt to take wrong views as to wliat would conduce to it. However this be, much of what Bentham recommended lias become fact. The two most important things — vote by ballot and virtually universal suffrage — liave come. Has corruption ceased? largely. Has the iwwer of the aristocracy been destroyed ? It has been greatly reduced, though, through the House of Lords, through their wealth and through their prestige, it is still very great. Has the power of the Crown, the prerogative, l>een reduced 1 Very greatly indeed. Hascorruiv tion and bribery been annihilated? Very greatly in the old sense. It is no longer a means chiefly in the hands of the upper aristocratic class ; but corruption and bribery have not wholly ceased. In fact, some of wliat IJentham calls corruption — the Ixjstowal of places to partisans being the necessary appendage of political power— 'will exist so long as man is the sort of man that lientham regards him, unless so far as the appointments are made by competitive examinations. Interest of self and family will come before interest of the country, the private before the public good, and it will never be wholly eradicated in the breast of either member or elector. Have the people become sovereign — the ascendant power ? Has its will become the source of law and government 1 Theoretically and ■ nominally it has. It is now acknowledged to be the "political sovereign," though the Parliament is the " legal sovereign," * in such a sense that the will of the House cannot i>ennanently or for long diverge from the will of the people clearly mani- fested. It can dismiss at next clcctier, by their clergy nuin or pastor, by any superior intellect with whom they come in frequent ciniUict, even by the local platform orator to some extent. And thus it conies about in the end that there is tolerable harmony between the will of the people, Rousseau's "gencrale volonte,'' »i"^l that of the mnjority BENTHAM 265 of tlie House of Commons for the time being. It may indeed 1m> changoil within ahnost twelve months ; but such a change, though it may result in a change of the government, is not really considerable, since a change of sides in a comparatively small fraction of the voters may change a majority on one side to a large one on the other. As final result, we have a (lemocracy which selects its rejirosentatives to the more important Chamber, able in theory to im]K)se on them its wishes, able even to extract pledges, but which gives to them considerable latitude ; nor does it make too close inquiry as to the possession of Bentham's qualifications of ** probity, intellectual aptitude, and intellectual activity," which might prove too exclusive for some if exactelitical descendant of the real rulers^ of Kdward i., Henry v., Henry viii., Cromwell, and William ui., the last of the real and herediUiry kings. Yes ; the Prime Minister is our nearest approach to a king ; and a king of some sort nations should have, must have, in spite of Constitutional theories and hctions. The proved ablest, who is also a leader uf men, with will, oratorical lujwers, temjier, tact, jMJpular i»owers, such are the qualities desirable, but two would seem most necessary in our time — intellertual ability and ready faculty of speech. He is the king ; but only the king of a factiiiu, as the other party, though it must obey his govern- ment, eensures his iKjlicy and measures. Still, as it in turn gets into power, then; is a certain equality in the system. We thus seem to be very far from the sovereignty of the people and the reign of democracy. Ihit it is not so : we have reached the best union or fusion of monarchy, aristocracy, and democracy that the circumstances of our age and history allow ; the best that the course of jHilitical evolution has BENTHAM 267 anywlicre shown. This working king must occasionally speak to liis subjects, must please them, humour them, must in some way appe^il to their imagination; must in a sense fascinate them. For the people, if it is to allow itself to be ridden and guided, will only obey a skilful rider, possessed of evidently great qualities as well as powers of speech. Only let him not bring in measures running against deep national instincts or prejudices, save with the utmost caution, and ho may have as free a hand as our old kings, and bo as loyally 8upiK)rted by the majority. Otherwise, the many-headed may assc-rt a ]>art of their latent sovereignty at the byo-olcctions, defeat his party's candidate, and at the general election send the Minister himself into the shades of Opjwsition, to his library t^) translate a classic, or to compose an essay for the magazines on the fickleness of the multitude and the general instability of things; to a dignified retirement, from which, however, unlike the dciwsed kings, he may hope to be recalled to take again the lead. On the whole, it is not a bad mri of mixed government, spite of all its defect^^, which are not now so numerous or glaring as they were when IJentham wrote in 1817 ; and we have even much imi)roved since Carlyle denounced it in 1850, as govern- ment by Parliamentary or Stump Oratory, though something more remains to be done in the way of improving its composi- tion. Under it, at anyrate at pra^cnt, any able man of any class may hopp to become king. A struggling man of letters, like Disraeli, a rich man of business, or the son of such, as well as the born aristocrat, may hope to win the ptize and become king. And in this respect it is a democratic as well as an aristocratic government, since anyone in the nation, if sufficiently able, may aspire to the highest place. It was not so a hundred years ago. Durke was an abler and more high-j)rincipled inan, every way a greater man, than liord Ikaconsfield. In our time had he lived he would have been a Cabinet Minister, perhaiw the Prime Minister. In his own time he was not even admitted into Cabinets that his abilities made ix)88iblc. This may have been due in part to defects in tcmiwr, or want of tact ; but it was mere due to the haughty 368 ENGLISH POLITICAL PHILOSOPHY excluflivenesa uf the Whig patriciaiu). They could not, however, for a long while do without his services, nor could they, when a great opportunity offered, prevent him from being, from the day he wrote his RetiecHons^ the most important man in England, and one of the most important men in Europe. Thus improved is our present method of finding our king as compared with the ruder methods of former ages. The methods and tests em})loyed ensure an able man, though not necessarily a genius nor yet a gi'eat statesman. It ensures an able politician, a good speaker, a ready speaker, with ready i>ower of assimilating knowledge and ideas, not perhaps very deep, just as other methods of wifting and testing ensure able judges, able chancelloi*s, able bishoiw and arch- biHho))H, so that at any given time it is certain that the Prime Minister, the Lord Chancellor, and the Archbirthop of Canter- bury Hliall be men of a certain high range of intelligence, but nothing more. In none of the cases do the moiles of benrch an«l testing necessarily evolve a genius ; and, as matter of fact, not one out of ten of the two latter kinds of chief men proves so to be, or lenves a name that is not speedily forgotten ; and if it is not quite the siime with our I'rime Ministers, it is because their names nmst figure in our liistory, just as in the cases uf the kings and queens. And if now we look at our history for the jxist two hundred years since the new method, call it parliamentary or jKirty government, came in, we shall find the rule to Ihj, men of ability, like WaliKjle, Carteret, the younger Pitt; the rare exception, a man of genius, a statesman with a prescient eye like Chatham ; with a fair percentage uf commonplace men, like the l)uke of Newcastle, the Marquis of Kockingham, Grenville, or Sid mouth, liut since the Reform l>ill of 18,12 things have so much improved that every Prime Minister since, for nearly seventy yeai*s, has been an able man, while three at least, Peel, l)israeli, and Gladstone, have risen to the rank of real statesmen. IJut even iJeaconsfield was not a great tine; he was only abler BENTHAM 269 than anyone else in his party, lie was shrewd, daring, some- what unscrupulous, skilful enough to see that the Tory party must alter its i)rofes8ed aims and principles a little, if it was to have a continued and prosperous life ; clever enough to outbid his rivals in 1867, in the confident expectation of supjwrt from the working classes. And Gladstone? Have we not had in him a divine and heaven-sent one ? Well, he was perhaps the best of the whole line of party sovereigns in our century, and something considerable he has done, something great attempted, though without weighing sufliciently the adverse forces. Above all, his greatest attempt did not succeed, and to be a great statesman one must, like Bismarck and Cavour, succeed, and not merely attempt. The fact is, that it is an extremely difficult thing to be a great statesman, and it would seem as if only at certain favourable ejiochs and conjunctures can anything considerable be done. Routine and small measures to meet urgent exigencies is all that is possible save at certain times. To attempt larger enterprise is dangerous. The thing proposed may not on the whole be for the general good, or the time may not be ripe. The fact again is, a great man cannot be expected to appear except in critical times and most exigent circumstances — times and circumstances such as brought forth a Cromwell, a Cavour, a Jyincoln, a liismarck, or a Napoleon. Otherwise, hardly once in a century, if so often. But critical and extraordinary times bring them out. The human faculties are then excited and braced, and do all that is in them to do, and men surpass by much their usual easy-going routine selves. It is, as Burke says, when " the highroads are up, and the waters out, when a new and troubled scene is opened and the fde affords no pre- cedent," that a great man gets his chance, and that he usually, but not always, appears; the" very occasion to which Burke refers being a signal example in English affairs, when the great statesman was required and did not appear, but only small men of routine ability, through whom we lost our splendid colonies bearing the future hopes of the world. We only find our big men, our Crom wells and Chathams, in times of crisis— and not always then. In the French Revolu- ajo ENGLISH POLITICAL PHILOSOPHY tion, if wo except Burke, we did not find one groat statesmnn, and in the Groat War only one groat gonorul, while the Fronoh found many. Since then the rule has been to have able nien, but not at all geniuses. . Respectable ability is ensured, and the I)ower of saying in attractive English on various subjects what many people know (piito as well as the speaker, but which they are not indi«p<)Hf«l to hear fn»ni a nkilful speaker, or even to read in the morning paper, UiUch more the nntltitudo who regard the oration as a marvellous feat and the consummate Hower of wisdom, instead of the long result of art and practice seconding natural aptitude. Carlyle despised lx>th the methods by which our ablest is now evolved, and, with the exception of Peel, the usual minis- terial product. Perhaps Carlyle was here a little wrong. A parliamentary king i.s better than a hereditary one, because some considerable merit the former must necessarily have And our choice, short of revolutions, lies between the two, IJut new intuitions, original ideas, do not come to such men in ordinary times, any more than to able writers of leading articUw. They an* simply well-informed men, ready in speech, ready at assimilating knowledge and the ideas of others; as a rule, look for nothing new from them. The new ideas, the new possibilities in politics, nmst be sought for in a diil'erent (piarter, and, it may be, will not be found. At anyrate, we know tho kind of men from whom the new wisdom has come : from men of the tyiie of (troti\is, Hobbes, Montesquieu, Adam Smith, Burke, Bentham, the now light comes j even from men like Kant, Hegel, Savigny, though these latter have not as yet had great intluence in this country. It is the special work of such men to evoke tho new, to convert it into science, and for statesmen to make from this science a correspondent extension of the sphere of practice. It is no reproach to statesnu>n that they do not discern the New. They have not the time. It is not their function. There must be division of labour. For seldom, indeed, can a man be, like Burke, both the ^Kjlitical philosopher and the stutesman, the "philosopher in action," J. S. MILL I. THK SCIENCE OF SOCIETY The mnntlo of Bcnthara fell upon John Stuart ^lill, who, iluriug IJenthftm's later yearis, had lalxjured under his cyo and direction in the diffuaion of his system; had even aided in the editing of some of Ilentham's confused and half-finished mnnuRcripts. Dedicated early by liis father, James Mill, to the pursuit of knowledge and learning, and self-dedicated when he arrived at years of discretion to the double life of philosopher and reformer, he embraced with youthful enthu- siasm and imdoubting faith the system of Hentham in all its fulness, and laboured long in the Westniinsier Review (which had been lately founded by Bentham) to propagate its doctrines. It is true that before many years were over he found its in- sufficiency as a creed, that it required to be qualified and supplemented by the teaching of Coleridge in regard to matters moral and political, and that in a few years later, as his mental horizon widened further, certain elements, taken from the French philosopher Comte, were found requisite, even some- thing (in 1848) from the school of French Socialists; still he affirmed in his ICssay on Bentham that everything that Bentham had said was true, he had merely left unsaid something that was important Like Bentham, he was a philanthropist and "humanitarian"; like him, he was a political reformer as regarded his own country ; much more than Bentham, he was an ardent believer in progress, moral, political, and intellectual, for the human species, above all, for those races already in the van. He (in himself) was a nobler, mgre cultured, and higher character than 171 372 ENGLISH POLITICAL PHILOSOPHY lienthani, and he cherished ideals with regard to his fellows that never visited tlie somewhat prosaic and commonplace mind of Bentham, or the stern and pessimistic mind of his father, James ^lill, wlio (as the son tells us in his Autobiofjraphy) had a poor opinion of the human species, and thought thut little was to be got out of life at best for the individual, though something might be done for society by improved institutions. His son, on the contrary, had the grandest and most sanguine dreams for the future of tlio race, as well as tlm happiness of the man — dreams that lie tliought might bo realised, and at a not distant date, esi)ecially in the moral and political sphere. We were at a low and a comparatively early stage of improvement ; how low our unjust laws and institutions, our habits and moral sentiments, so little removed from barbarism, decisively showed. A happuiess hitherto unrealised, an elevation of mind and character never yet attained, was jxjssible and could even be soon reached if " will and knowledge were not both wanting." To stimulate and elevate that will, to contribute something that was lacking in that knowledge, was the aim ami ellbrt of his life. How far successful he has been, in particular how far he has made important contributions to political and moral science on which he chiefly relied in his hopes for improvement, it will be the object of the following pages to incjuire. Certainly no knight in quest of the Holy Grail ever laboured more devotedly or more ]tersistently than Mill in pursuit of the true and the good. He liad in him that "i)asKion for humanity " and its highest interests, which in the mouth of so many is a vain and empty phrase : the " lire truly celestial " which for ten years consumed Kousseau,^ and which is so apt to smoulder down in the best, burned in Mill nearly through an entire life. This it is which makes him so remarkable and interesting as a man ; so noble an example of the virtue he jireached ami urged u^kju men, the vast nuijority of wliom are wholly incajMible of tiiking it to lieart and carrying it into practice. In fact, amongst the vast egoistic mass he appears as one of those high and spotless and devoted characters, whose rarity makes the appearance of one a sort of moral miracle. So much * Les Con/csitiuuH, paiti© ii. Uvre ix. J. S. MILL 273 must he said of tho man, wlmtevcr be the limitations of the philosoplior or tho teacher. He has written on most of the subjects treated by liis early master, J»entham : on lojijic, metaphysics, political economy, political science, moral science, on iu*arly all the subjei^ts that relate directly to man himself, either individually or collectively, and on all of them he has written much better than IJcntham, both as regards matter and style ; in the latter respect, indeed, he presents us with a model of philosophic exposition. He has not written much on the philosophy of law, leaving this to liontham and his friend John Austin, or on law reform, because, not being a lawyer, he could hope to add nothing to IJentham's lalxmrs ; but he has written, and written well, on international law, which is really, as he regarded it, a branch of morality in the wider meaning of the word. He has written various essays on the philosophy of history, an interesting subject in great vogne during the earlier half of the century, and from which Mill had vast expectations. He has also written on certain imi)ortant subjects that had barely appeared above the social horizon at the time of I]entham'8 death (1832): on the possi- bility of a Science of Society, or Sociology, in which, largely on the authority of Comte, he believes, though he did not think that Comte did more than lay the foundation for it, if so much ; on communism and socialism, in the possibility of which, in the distant future, he likewise believes, while thinking that certain choicer spirits in whom egoism was duly reduced would be fit for it even now. As his expectations of a science of society faded from view, his belief in socialism seems to have increased,* jind, in fact, it would not be easy to hold the belief in socialism and sociology in the mind simultaneously. He is also the author of a noble essay On Liberty^ one of the finest things he has written, which contains a plea for the largest IK)ssible sphere for freedom, not merely from unnecessary law, but from the yoke of opinion in regard to matters, whether of Ijelief or conduct, that solely or chiefly concern the individual, so that he may have a free and large space in which to expand * But in his j^apcrs on sooiftlism (1869) his belief seems to have rather deoreasod. 18 374 ENGLISH POLITICAL PHILOSOPHY his owu i)«r8oniility, his own individuality, on which he laid the utmost stress, for its tendency to promote both the happi- ness of the individual and the elevation of the community as composed of such individuals : a plea and a protest conceived in the spirit of Milton's Areojxigiticay and meriting a comiwirison with that famous tract. Finally, the knight-errant for Truth and Freedom and Labour embraced yet another cause, the cause of Woman herself, bound and tied and held in subjection by the selhshness of man, excluded from suitable callings and from political functions by cruel and disabling laws, from which shesutfers untold wrong and imin and hardship. This is wrong and injustice — an injustice affecting one half the human race ; and in his Subjection of Women he sets his huice in rest for a last and somewhat Quixotic crusade. He would be the Perseus to set free the modern Andromeda, bound to the rock by male oppression, the good knight to rescue the distressed lady from disabilities, legal, political, even moml, with which evil-minded men had bound her. Some fragmentary iMii>ers on socialism, in which there is no doctrinal advance on the views in his Political Economy ^ closed his literary career, though a very interesting Autobiography appeared iwsthumously. §2 He was a believer in progress, and he would search its law, an unwearied seeker for truth and light; and his greatest book, his System of Logic , is written to furnish us with the methods of search for truth, and of its tests when found or in dispute or doubt. After many preliminary essays on various subjects, a little after 1840 he came to the conclusion that his fii-st great taxk lay here : to teach men to " know the truth," and the ways to lind it ; a great enterprise, and worthy of IJacon. Let us see how he succeeds. We should only believe proptjsitions on sutlicient evidence, duly tested. Doubtless we believe on testimony which may be good evidence, ilut we speak now of the tirst inquirers into truth, or fact, at lirst hand. On moral, political, religious subjects, lielief is produced in us frequently by anything rather than J. S. MILL 275 good evidence — authority, blind prejudice, mere obstinate association of idcas.^ Truth, knowledge, is the corresiKindcncc o( the thought or belief in the mind, with facts eitlier in external nature or in the mind itself. Such true knowledge is to he found especially in the laws of physics and chemistry. These laws are true. They are universal, at least upon our earth and within the limits of the solar system ; though per- haps not in " distant parts of the stellar regions," where things, lie thinks, may iK)ssibly succeed each other without any law. The mind cannot believe, though it might imagine an exception to one of them, like the law of gravitation. Nothing is credible to a properly instructed mind that implies an exception to these laws ', incredibility, in fact, applies only to propositions contrary to a complete induction, sucli as all physical laws are. They furnish the higliest tyi)e of certainty in knowledge, and they are discovered and proved by certain Inductive ^lethods, in the long-run founded on careful observation and experiment. In tlio science of physiology, human and sub-human, there are also universal truths or laws, laws of the circulation, of the nervous system, of structure and function, which have been discovered by induction. Other laws there are which remain unknown, because it is impossible to apply the inductive methods of search and proof, in jiarticular there is the difficulty of making a true experiment. Another method is hence necessary, just as in astronomy, where experiment is mostly impossi})le. This is called the Deductive Method, which is the method of reasoning from general principles of which we are certain, and then com- paring oiir conclusions, so far as possible, with objective facts or inferior laws, with which^ if our conclusions agree, wo have arrived at new truths that either could not have been observed in all their generality, or not without extreme difficulty. Geometry presents the simplest example of such deductive reasoning, whore wo feel the niost perfect confidencG in its general conclusions. Yet the conclusions arc g"t by pure reasoning, without observation or experiment; and if we compare our conclusions, so deduced, with facts that may }ye observed, wo find the latter always agree with, always confirm, * Loffic^ 6tli ed. vol. ii. oliAp. xxi. a76 ENGLISH POLITICAL PHILOSOPHY the reasoning. The like holds in astronomy, where general truths, including the most general, the law of gravitation, have been reached by deduction. So certain are they, that accurately verified predictions may be based on them months and years in advance. Here, then, are the two routes to truth and certain knowledge : the first, the inductive route, leading to general propositions ; the second, the deductive, being the sole route to those great " theories by which Vast and compliiuiteil phenomena are embraced under a few simple laws, which, considered as the laws of those great phenomena, could never have been detected by their direct study." Why, then, not apply these methods to the discovery of truth in the moral and political sciences, as well as to the testing of the conclusions which we already hold I And to this Mill replies that induction will not suffice, be- cause experiment is for the most part inapplicable in politics, owing to the plurality of causes at work and the mixture of the effects, and mere observation is insuHicicnt, and hence that deduction alone atibrds any hope of our discovering truth in these regions of inquiry. It has been applied 8ucces8fully to discover the laws of mental association, and to exi)lain im- portant mental phenomena connected with moral science ; but esjiecially in political science, or the science of society, deduc- tion alone can effect anything; and this only as respects a particular class of facts isolated from the rest, and considered as in a state of equilibrium, as in political economy, that is, without having regard to the fact that economic facts, as well as all other groups of social facts, are in a state of change. Deduction alone will suffice here, but it must not Imj a deduction based on the geometrical type of reasoning, as with Ilobbes; nor yet, as with the l>enthamite school of ^joliticS) B deduction which forgets plurality of causes. It must be deduction which studies the etfect of only a few causes, the result of a few general laws, us in the case of political eci»nomy, where we start with a principle which, though not universally true, is true in a great majority of cases, namely, that men in geneiul desire wealth, and are averse to labour ; and if we join . with it the Malthusian principle of population, and the law of diminishing return from land on the application of additional J. S. MILL 277 capital and labour, wo can draw important conclusions, carrying with them practical consequences, which are at least hypotheti- cally true, and which will agree with observed facts, provided we have omittod no predominant cause. \ In like manner in regard to the distribution of wealth, assuming the principle of ])rivate property, freedom of contract, and the general fart of competi- tion, \vv can deduce laws of wages, profits, and rents, according to which each of the three great economic classes receives its share of the wealth produced.^ In this case, by the method of deduction, new truths may bo discovered of great importance to capitalists and labourers, as well as politicians and the community generally ; and such is the method employed by Mill in his second ambitious work entitled the Princij^les of Political Economy. It is true that the value of his conclusions is now in dispute, as well as the worth of his method in this particular held of inquiry ; and true that Comte, by whom he was greatly influenced when writing the Lorjic^ had condemned political economy as not properly an independent science, its phenomena being, as Comte affirmed, inextricably mixed up with the other great social facts. Still, Mill was not convinced by his reasoning. He was, however, convinced by Comte that as regards social inquiries generally, deduction was not the proper method of search ; that owing to the complication and mutual action of causes it was the wrong road to truth ; and that what Comto calls the Historical Method, and himself the Inverse Deductive Method, was the right road. This method, as Mill describes it, consists in drawing generali- sations from history, and then trying to show from psychology and the science of natural character (ethology) that such observed generalisations are not mere fancif\d inductions, but such as consist with the general laws of the human mind, and might have been expected in the circumstances.^ Tliis was Mill's view in 1843 when writing the concluding book of the LogiCy entitled *' Logic of the Moral Sciences." When writing the earlier book on Induction he declared that "physical inye-stigation has now far outgrown the Baconian conception of Induction," and that "moral and political inquiry indeed are as yet far behind that conception " ; and further, that for 278 ENGLISH POLITICAL PHILOSOPHY any considerable improvement in this field we must look mainly to deduction.^ And this he so far continued to believe that he defended its application to political economy, but not to the social science generally, though the former, as he alleged, was a sub- department of that greater science. In the latter, the historical method is the proper one, but, not to part with the word " deduction," and because deduction is really employed in con- necting the inductive generalisations frum history with the wider laws of mind, the name he gives it is the Inverse Deductive Method.- §3 But by whatever name its method be called, and whatever its subordinate provinces, a grand new science was i)0S8ible — the science so long dreamed of and hailed from afar by Vico, by Condorcet, and other illustrious names. Mill believed in 1843 that all social phenomena, as well as ])hysical phenomena, were subject to natural laws, and that societies in their history or evolution were subject to natural laws of change, of growtli or decay, just as the living bodies were. This was the central conception of tlie science, though not very clearly apprehended by Mill until he had read the concluding volumes of the Cours de Positive Philosophie, published in 1842. In this work Comte claims to have founded the science by his discovery of the Law of the Three Stages.^ Mill di)es not think that Comte has founded the science, but only made its foundation possible. I lis own speculations, in which he is considerably intiuenced by Comte, are to be found in his LogiCt vol. ii., "On the Logic of the Moral and Political Science." According to Mill, the question which the general science of » Vol. i. 6th cd. p. 443. * Dr. Ingram, in his excellent Ilistonj of Political Ecotu/my, objects to the phraso " inverse deductive method " which Mill employs. He uses it beeauHo we draw the inductions first and then try to show that they are contained under or are deducible from the laws of mind, whereas we do the ouposite in employing the ordinary deductive method. We take the general principle, and from it draw the particular concluhion, which wo then verify by comparing it with facta or niinor laws. ' See p. 524. J. S. MILL 279 pociology has to answer is : What are the causes which produce and the phenomena which characterise states of society generally 1 In tlie solution of this question consists the general science of society, by wliich the conclusions of the other and more special kinds of inquiry must bo limited and controlled. But what is meant by " a state of society " t He replies : " A state of society is the simultaneous state of all the greater social facts. Such are the degree of knowledge, and of intellectual and moral culture, existing in the community, and in every class of it ; the state of industry, of wealth and its distribution; the habitual occupations of the community; their divisions into classes, and the relations of those classes to one another ; the common beliefs which they entertain on all the subjects most important to mankind, and the degree of assurance with which those beliefs are held ; their tastes and the character and degree of their aesthetic development ; their forms of government and the more important of their laws and customs. The condition of all these things, and of many more which will readily suggest themselves, constitute the state of society or the state of civilisa- tion at any given time." ** . , . There exists a natural co-relation amongst these dif- ferent elements ; not every variety of combination of these general social facts is possible, but only certain combinations. In short, there exist uniformities of co-existence between the states of the various social phenomena," which is "a necessary conse- quence of the influence exertesing no free agency or su})ernatural interposition, in which Mill does not believe, and supposing the law of causation universally true, which he does believe.* We should have to suppose the entire course would for ever repeat itself ; and wo presume that the same peojile would be re-born in a peri>etual palingenesis.^, * Thia fancy is rererred to twice in the Lmjic, vol. ii. p. .'iOT, and vol. i. J). 101, where the notion of ^tuUngenciiis ii more distinctly indicated. J. S. MILL 281 Mill liimself does not believe in this cyclical theory. It was, he snys, the opinion of Vico ; it had some fanciful analogies in it«» filvoiir, hut cannot be seriously maintained. The true ide^a is that of a linear path, not returning on itself, constant change not repeating itself. We might, however, pause to inquire how the same circumstances, not merely in details but even roughly in essentials, could be conceived as recurring for, we will not say, identical but merely similar beings. For the human units under supposition have always been not merely changing but eidarging their circumstances in the sphere of industry, and improving their circumstances in the practical arts and inventions, not to speak of fine arts, literatures, and govern- ments, which raise and refine their circumstances. Besides, the man himself has been growing and his "thoughts widening with the process of the suns." To make the figure of a cycle thinkable, we should have to make the impossible supposition that both the man's circumstances shrink to what they formerly were, and that the man himself retrogrades, that lie has un- learned and forgotten all his useful arts and lost his conquests over nature, that his expanded nature contracts to that of the man of long time ago, the latter not indeed inconceivable. No iloubt, in the matter of religious belief we might conceivably rettirn to the attitude of Plato or Marcus Aurelius and the Stoics, as in the Darwinian theory we have returned very much to the position of Democritus, who derived the world from physical atoms, chance-marshalled. Religious, philoso- phical, and even ethical speculation, conceivably revolve in cycles, as many believe. Even as regards property and government, a return to the primitive communism is so far from unthinkable that it is the goal of our CollectiviHts. But even if as respects all these we did return to the past, our material progress, positive science, inventions, and di8ox)verie8 would remain, that is, our most improved circumstances would remain as now, uidess the reversal to communism should, like the invasion of the bar- barian Huns and Goths, sweep away civilisation with all its records and results. Even then heredity would remain. The traces of the past would remain in our brains and moral dispositions, and wo should start with an advantoge over our a8a ENGLISH POLITICAL PHILOSOPHY anceBtors of long ago, and should quickly recover what had been lost. / To return to Mill's theory of progress. It is not a cycle. But neither does progress necessarily nietin iiuproveraent. He himself believes in progress in the usual sense of improvement, and that the general tendency is and will continue to be, with occasional ami temporary exceptionw, one of improvement ; a "tendency towards a better and happier stjite." This, how- ever, is but faith, " a theorem of the science of society to be I proved." All ho insists u|)on is that there is a progressive change in the character of men and in their outward circum- stances; that in each successive age the princijjal phenomena of society are difi'erent from what they were in the preceding . age, still more dill'erent from any previous age ; and the question is, What is the law or laws of this change ? Some advanced thinkers on the Continent, he tells us, have tried to discover from analysis of the general facts of history the law of progress, which law, once discovered, would enable us to predict the future, just as, after we have gathered the law of formation of an algebraic series from a few of its successive terms, we can predict the rest of the series even to the most distant term. To try to gather laws in this way is, he thinks, a misconception of the true method of the social science, because such laws can only be empirical, that is, laws whoso cause is unknown, and therefore not to be applied siifely to future circumstances until connected with laws of human nature, psychological or ethical. Empirical laws of history do exist, but they cannot be extended beyond the particular time and place, the jwirticular age and people in which they were mani- fested, unless it can be shown from human nature and character that these laws would follow in the new circumstances. Comte alone has attiunpted to do the latter, and thus has raised empirical laws of history into real scientitic laws. He contemls that no one is qualitied for the stmly of sociology who is not completely skilled in these laws, that is, in psychology and ethology (or the science of character) ; other- wise he will not be able to prepare the materials for a true historical generalisation by properly analysing the facts which J. S. MILL 283 history presents or even by correct observation of contemporary Hocinl facts. Such is the necessary intellectual equipment. He niakcs n() mention of a preparatory discipline in biology, or tlie science of life, on which not only Comtc but Herbert Spencer insists, on account of the important gcnernl conceptions and fruitful analogies which biology suggests. Wc must begin with the historical generalisation, and then try to connect it with the mental law. We cannot reverse the process ; that is, set out from the general laws of mind, and the general circumstances in which man is placed, " to determine (\ jmori the order in which human development miist take place, and to predict the general facts of history up to the present time." This would be (as is too evident) a wholly hopeless task. . The mere length of the series would prevent any pretence of accurate computation after the first few terms ; so that "if the series of eflfects themselves did not manifest any regularity or law, we should in vain attempt to construct a general science of society." But history happily does present empirical laws of society, and the problem he repeats is to ascertain these and connect them with laws of human nature. The empirical laws of society are of two kinds — those of co- existence and those of succession ; and accordingly the science of sociology divides into two parts — Social Statics and Social Dynamics. The former concern the mutual relations or con- ienstis existing l)etween the several larger interests of society, the principal aspects of the social organism ; its government, religion, laws, literature, economic condition, the arts of life, degree of knowledge, morals and manners. Social statics would ascertain empirical laws or uniformities of co-existence between any of these, and sucli, if dcducible from or connected with the principles of human nature, become raised to true scientific laws. At its lowest estimate, the social statics deals, as its name implies, with the necessary " conditions of stability in the social union " ; whereas social dynamics is the theory of society considered as in a state of progressive move- 284 ENGLISH POLITICAL PHILOSOPHY meut. In social statics the several parts are all mutually related to each other, action and reaction takes place, just as it does between the different organs of the body, brain and Btumach, heart and lungs, and in such wise that any consider- able change in one is followed by changes in all the rest, however remote in appearance from its influence. For this reason, each of the elements of the social state should always be studied with reference to all the other elements, with the whole t)f which it is united by mutual interdependence. As to the mutual relation of the parts, thinkers are agreed. But it is hi the dynamics of the subject that we get the best proof of the connection ; for it is always found that a change in one part operates immediately or very speedily upon all the rest. Moreover, there is a consensus^ though of less marked character, between the social phenomena as a whole existing in one civilised country and those in another, especially in modern times. Nations increasingly act and react on each other in these particulars, so as more and more to approximate. All this he gathers from Comte ; and further, that " one of the most important and, until lately, most neglected of the general principles of social statics may be considered as established, namely, the necessary correlation between the form of govern- ment existing in any society and the contemporary state of civilisation ; a natural law which (he thinks) stamiw the end- less discussions and innumerable theories respecting forms of government in the abstract as fruitless and worthless, except as preparatory treatment of materials for a better philosophy." lie then gives us, partly from his interesting essay on Coleridge, what he considers the " requisites of sUible p^ditical union . . . one of the maui things which a science of social stiitics should furnish us with if it is good for anything." ^ They are those circumstances which, in all societies without exception, and in greatest degree where the social union is most complete, are to be considered as conditions of the exist- ence of the ctjuiplex phenomenon called a State. For example, every society has had numerous laws or usages equivalent to * These nre also given by Herbert S|»enccr in his Social Statics, with which it is lntorestiii|,' to cunq>are thenu J. S. MILL 285 them, trilmnalH ami organised force to execute their decisione, together witli j)uhlic authorities wliom the rest of the com- munity ol)eyod, or, according to general opinion, were bound to obey. Tliese would seem universal, still they are only empirical laws till connected with laws of human nature. Now, this ol)edience to government is a slow product, not natural to warlike savages — so very slow a product that it. took ages of discipline to break in savage nations to it; and wherever the obedience was at last firmly establislied, and yet vigour and manliness of cliaracter preserved, there were certain re- quisites necessary. First, for all citizens there existed educa- tion, a long-continued restraining discipline to break down the passions and egoism of the individual, and make them bend before the exigencies of the society. The entire policy, civil and military, of ancient States was j?uch a training ; in modern nations (since the downfall of the Roman empire) it has been attempted by religious teaching. The discipline once relaxed, " the natural tendency of mankind to anarchy reasserted itself; the State became disorganised from within ; mutual conflict for selfish ends neutralised the energies which were required to keep up the contest against the natural causes of evil ; and the nation, after a longer or briefer interval of progressive decline, became either the slave of despotism or the prey of a foreign invader." The second condition was the common feeling of loyalty to something ; something above question, about which all were agreed. It may be, as with the Jews, a common God, the protector and guardian of the State, as distinct from other and false gods ; or, as elsewhere, certain persons regarded as rightful rulers, whether by divine appointment, long prescription, or superior worth ; or merely laws, ancient liberties, or ordinances ; finally, the feeling may attach itself to abstract principles, individual freedom, and political and social equality, which he thinks is the shape the feeling will probably take in future. This something sacred, above dispute and discussion, has always existed ; and the reason is, that causes for internal dis- sensions there' always must be, and nations weathered these 286 ENGLISH POLITICAL PHILOSOPHY » storms withuut civil wars because their diiferences did not affect the fundamental principle of tlic social union, did not threaten large portions of the community with the subversion of that on which they had built their calculations, and with which tlieir hopes and aims were identified. We have here something in the stniin of Burke's Reflections ; and he goes on, while using one of Burke's metuphorn, to lay down a remarkable conclusion and well worthy of note in our time : " When the questioning of these fundamental principles is not the occasional disease or the salutary medicine, but the continual condition of the body politic, and when all the animosities are called forth which naturally spring from such a situation, the State is virtually in a position of civil war, and can never long remain free from it in act and fact" These remarkable views were suggested to him by the " Germano-Coleridgean school" (so we gather from his essay on Coleridge), the first who produced " a philosophy of society in the only form in which it is yet possible, that of a philosophy of history," and also by the series of great thinkers, from Herder to Michelet, who have made history, — till then little better than "a tale told by an idiot full of sound and fury signifying nothing," — a science of causes and effects, and who, " by making the facts and events of the past to have a meaning and an intelligible place in the gmdual evolution of humanity, have at once given history, even to the imagination, an interest like romance, and afforded the only means of predicting and guiding the future, by unfolding the agencies which have produced and still maintain the present."* Such were Mill's views in 1840 on the staticid and dynamical problem of society, just as Comte was nearing the conclusion of his Cours de Ponitive Philosophie (completed in 1842), the last two volumes of which contained a new philosophy of history. Mill, ever oii the outlook for philosophies of history, eagerly read Comte's volumes; and in 1843, while utilising them in his LoiliCy he awards the i>alm to Comte's philosophy of history, in regard to his treatment both of the statical and dynamical aspects of the science. ' Eawiy ou CoUiidge, ViiufcrtulioiM and Vidcasuioiis, vul. i. p. 427. J. S. MILL 287 ^ 5 , But the great pro>)lrin, Mill thinks, is not the sUitical but the (lynamical one ; to discover the sequence of social conditions, or how one stite of society changes into the following one. If we could connect the leading general circumstances of each generation with their causes in the generation immediately pre- cevling, — in other words, if we could by thus remounting the stream get a scientific history of each of the great branches of social facts or sides of the human spirit (such as art, religion, law, industry, philosophy), — it would bo something. But the difficulty, pointed out first by Comte, arising from tlic con- ftenitm of all these capital subjects, is so great and so increasing in modern times that wo must rather regard it as the emembh^ ** the whole which produces the whole rather than any part a part," so that the problem should rather be put : " What are the laws according to which social states generate one another as society advances ?" He tjiinks the empirical laws usually gathered from history are good so far as they go, but insufficient : for example, the • tendency of mental to prevail over bodily qualities, of majorities to rule over minorities, or of pro- gressive societies to pass from the military to the industrial life. Such generalisations are too remote from the principles of human nature ; there are too many links required to connect them with it. We are not sure of their future continuance, nay, that they may not "even be reversed," so that though they may suffice for the historical school of the Continent (so much eulogised in 1840), they no longer suffice for him. These empirical laws " indicate merely the relation between fragments of the effect to fragments of the cause." Wo must now consider (and the problem is a tremendous one) not only the progressive changes of the different elements, but tho contemporaneous condition of each, and thus obtain the real empirical and scientific law — *' the law of correspondence, not only between the simultaneous states, but Y)etween tho simultaneous changes of these eloments." This is a little abstract, and perha))s not very clear. What he really means is, that we must know how the whole mutually related set of capital phenomena, their a88 ENGLISH POLITICAL PHILOSOPHY mutual relations or empirical laws being known, change into the next successive whole, or, in short, how their statical eonsenaus changes into the next statical consenms. And such law, he gravely tells us, " duly verified i\ priori would be the real scientific derivative law of the development of humanity and human affairs." It would be the grand law of progress of which he is in pursuit We have here before us, in fact, a prodigious and, in the way he puts it, wholly imix)ssible problem, namely, to deter- mine by what law a vast simultaneous and complicated whole, composed of some half-dozen large bodies of social phenomena, all in a state of mutual action, changes into another simul- taneous whole at the end, as he thinks, of a generation, which allows time for a now set of actors to come on the boards.* Now, the natural way to proceed to answer the question would a\)\m\r to be the way of the new Historical School, namely, to try to trace the history of each set of phenomena during past generations down to the present time, to ascertain the train of causes, to summarise present conditions, and, if we would hazard predictions as to the future, to point out present tendencies, and finally to make a provisional calculation as to what may likely follow from present facts and tendencies ; to do this and to do the like in the case of each of the greater social interests. But if several historians did this — for no one man would be competent to do it — it might perhaps be found that in each department — art, religion, philosophy, positive science, inven- tion, government, the chief categories of the human spirit, as they are the larger social interests— the changes and im- provements have been due to men of genius appearuig ; that the present generation, the present state of society, pro« luces the next — improved if abler and better men apjMjar, Htationary if they do not, or even retrograde if the tyj)e of leading spirits in each is inferior. Some such law of human development it might be possible to lay down. lUit, put in the way Mill puts it, the problem is hopeless and unanswerable. He has even a vague feeling that the i>roblem is wrongly * Logic, vol. ii. \i. 507. J. S. MILL 289 put and iiicapftblc of 8t)lution. He says : *' In the difficult prtKiess of oV)sorvation and comparison which \h here required, it would evidently he a great assistance if it should happen to be the fact that some one element in the complex existence of social man is pre-eminent over all others as the prime agent of the social movement. For we could then take the progress of that one element as the central chain, to each successive link of which the corresponding link of all the other pro- gressions being appended, the succession of the facts would by this alone be presented in a kind of spontaneous order, far more nearly approaching to the real order of their filiation than could be obtained by any other merely empirical process. " Now, the evidence of history and that of human nature combine, by a striking instance of coincidence, to show that there really is one social element which is thus predominant among the agents of the social progression. This is the state of the speculative faculties of mankind, including the nature of the beliefs which by any means they have arrived at con- cerning themselves and the world by which they are sur- rounded."^ Thus then, in brief, progress depends on the state of the speculative faculties, because sciences are created by the specula- tive faculty, and our views on philosophy, religion, government depend on it, while invention and industrial improvement are limited by scientific, knowledge, and even fine art is related to it, though the connection is less obvious. It follows from the predominance of the speculative faculties that the history of civilisation is reduced to a history of the progressive development of the human intel- lect. The history of humanity is the history of intellect or knowledge in the race. This conclusion, which can be deduced from the laws of the human mind, is confirmeil by the great facts of history, and thus it becomes a true scientific law. To quote his important words: "Every considerable change historically known to us in the condition of any portion of mankind, when not brought about by external force, has been preceded by a change of proportionate extent in the state of > Loffie, ▼ol. il. p. 521. >9 ago ENGLISH POLITICAL PHILOSOPHY their knowledge or in their prevalent beliefs. As between any given state of speculation and the correlative sUite of everything else, it was almost always the former which first showed itself, though the effects no doubt reacted jxitently upon the cause. Every considerable advance in material civilisation has been preceded by an advance in knowledge; ami when any great social change has come to iwss, either in the way of gradual development or of sudden conflict, it has had for its precursor a great change in the opinions and modes of thinking in society. Polytheism, Judaism, Christianity, Protestantism, the critical philosophy of modern Kurope (not necessarily the German critical philosophy), and its positive science, — each of these has been a primary agent in making society what it was at each successive period, while society was but secondarily instrumental in making ihenif each of them so far as causes can be assigned for its existence being mainly an innovation, not from the practical life of the period, but from the previous state of belief and thought. The weakness of the speculative pro- pensity in mankind generally has not therefore prevented the progress of speculation from governing that of society at large ; it has only, and too often, prevented progress altogether, where the intellectual progression has come to an early stand for want of sufficiently favourable circumstances." The problem of progress, thus greatly shnplified, is reduced to the ** ascertaining the order of progression in the intellectual convictions of mankind, that is, in the law of the successive transformations of human opinions." There remains the grand question. Are these successive transformations of opinion subject to law 1 and the grandest of all. What is the law, the law of progress, which thus gathered and distilled from extensive inductions, drawn from the long i)ast history of human thought and experience and confirmed by deduction from the nature of the human mind, sums up the past of human progress, and by implication contains the future ? Now it appears that the law, when Mill was writing his Logic, had not been found ; he was still in search of it. lint it was asserted by Comte that it had been found by himself, and Mill was at first almost persuaded that the fact was so. What was J. S. MILL 291 the law ? It is known as tlie Law of the Three Stages. The liunian mind, in considering the plienomena of nature, has [mssed through three grand stages : m the first (wliich subdivides again into tliree), phenomena were conceived to he produced by fetiches, etc. ; then amongst the nations of antiquity by a number of dilfcrent deities, national or tribal, or, as with the (f reeks, by deities having dill'erent provinces of nature under their direction, — the winds, the lightning, the sea, etc. ; wliile with the Jews all these deities become merged into one supreme Deity. 'These three successive sub-stages are known as the Theological stage of human conceptions and of the explanation of things. The next stage, which comes in due course of time in all civilisations, is the Metaphysical, when a superior order of minds becomes dissatisfied with' the best theological explanation, and tries to explain them by " entities " behind or within the phenomena. This stage was reached amongst the Greeks by tlie philosophers about the time of Aristotle, and in the Western world in the Middle Ages, when the nascent science was filled with vicious metaphysical and scholastic entities such as ** vital force," " Nature's horror of a vacuum," etc., mere fancies or fictions and abstractions turned into realities by the schoolmen and followers of Aristotle which clogged the elforts of genuine scientific inquiry. This state of things went on till the Baconian reformation, when science became finally emancipated from bad metaphysics. The theo- logical view of things, with its crude explanations, still con- tinued, however, outside science, which metaphysics was still endeavouring to soften and make less rude and anthropomorphic. At length appeared a philosopher (Hume), a metaphysician even, endowed with the Positive spirit, who boldly asserted that the notion of cause itself was fictitious and illegitimate that what was said to be causation was mere invariable ante- cedence and succession. Two facts are so related that one invariably precedes and Another follows. The first we call cause; it is said to cause or produce the second, as when fire is applied to gunpowder we say the spark caused the explosion of the powder ; all we really know is that when the spark is applied the other fact aga ENGLISH POLITICAL PHILOSOPHY follows. Tlie busiiieBB of Bcience in the sphere of pliysics and chemistry is to trace the8e inviiriable succesBions and sometimes invariable co-existences ; and in biology to trace these and further the invariable laws of structure, function, growth ; to say nothing about causes in the sense of productivity, but only as invariable antecedents. If these successions and co-existences were duly ascertained in all departments of inquiry, we should have a scientitic or positivist explanation of the universe. Any other explanation, such as the theological or metaphysical, is fiction and fancy. This last stiige, where the mind is satisfied with the ascertainment of invariable laws, invariable successions and co-existences, is the Positive Stage of knowledge. Phenomena and their laws compose the positivist conception of the universe. We should not ask for its First Cause in thi» sense of its producer or creator, since we know nothing of cause but invariable antecedent. But we might ask for its history in the jmst, as in geology or imlneontology we ask for the past history of the earth. We are now, according to Comte, in the third and final stage, where our conception of the universe is this positivist one, having outgrown the infantile conceptions of the i^lytheistic and monotheistic stages, the improved but still vicious and unscientific conceptions of the metaphysical stage ; vicious, because fictions, palmed off on us for facts, were given as explanations of phenomena, and because it tended to backsliding to the worse theological stage in new and subtler forms. We have here the famous Comtist Law of the Three Stages, the Law of Progress through the long past up to now. Our conceptions cannot improve further, though we may discover more facts and laws respecting them. We have reached the final stage, and this very law of the three stages creates Sociology, the last and crown of the sciences, which is to it what the universal law of gravitation is to astronomy. And corre- s()onding to this state of the speculative faculties there will of course be, as there always was, a sympathetic and a corre- sponding art, a polity, and even a religion, an art and ]K)etry free from its old theological and mythological follies, its Venuses, Madonnas, etc. ; and a religion which Comte did not J. S. MILL 293 fully elaborate for some years, but which he after warils gave to the AvorM as the Religion of Humanity — the love and service of the human species, great men, especially savants and philo- sophers, taking the place of the old saints in the new calendar. There is a correspondent new era. The industrial takes the place of the military era, which was suited to the theological stage, but not to the positivist, the age of positive science, which by her incessant discoveries and inventions ministers to industry and the creation and constant increase of wealth. The appropriate government is a republic for « all the Western States of Europe. And the true leaders of the people are the new industrial chiefs, the great capitalists, bankers, and employers of labour. These are the natural governors in an industrial regime as regards the temporal sphere ; while the spiritual jwwer is to be in the hands of real philosophers, that is, positivist philosophers, freed from all theological or metaphysical taint. Such wiw the issue to which the theory that the state of the speculative faculties governs all other interests led Comte, and such his scheme and prophecy for the futuic. Hut all this was not quite what Mill bargained for when he first hailed the positivist philosophy in 1842. He expected and looked eagerly for some " law of progress " to emerge from the history of the speculative faculties, or from the philosophy of history. What he expected he did not very clearly know, but that what did emerge was not what he wanted soon became pretty clear. It was a very remarkable generalisation, ho thought. It threw a ** flood of light upon the whole course of history," yet he felt somehow a great disappointment. Meta- lihysics following theology was to disappear. This would not have troubled him much, as his metaphysics was never more than skin-deep, mere psychology, the defence by psychology of Locke's system or Berkeley's idealism ; and this kind of meta- physics Comte might excuse, though he despised it. Where he really was taken aback was at the suggestion that progress was accomplished, that the definite and final stage of things had arrived, and that all people had to do henceforth was to get into and settle down in their proper place in the positivist 294 ENGLISH POLITICAL PHILOSOPHY Bystem under a peaceful positivist regime, where no higher prospect offered than the increase of positive knowledge ; and all this for a man who believed in an indefinite and immense progress in the future, who believed that men were only at the beginning inntead of at the full and perfect day of their career. Mill had looked for some aspiring monition, some fruitful stimulating formula in the law of progress pointing forward and upward, not one that glorified the present and bid us be happy and content under a positive polity. He felt, with the poet — " How dull it is to pause and make an end." A sudden vision of the insipidity of Positivism, as of lientbamism formerly, seems to have come over his fastidious and aspiring soul. While praising Comte's law of the tliree stages, he says, " I will not discuss the worth of his con- clusions, and especially of his predictions and recommendations with respect to the future of society, which appear to me greatly inferior in value to his appreciation of the past." And shortly after (1845) we find him casting his hopes for a law of progress in another quarter. He turns to Guizot's Lectures on History to see if there was there any better prospect of a philosophy of history or a more hopeful law of progress. Meantime he concludes his remarks ^'on the historical method : " Whatever decision competent judges may pro- nounce on the results arrived at by any individual inquirer, the methoil now characterised is that by which the derivative laws of social order and of social progress must be sought. liy its aid we may hereafter succeed, not only in looking far forward into the future history of the human race, but in determining what artificial means may be used, and to what extent, to accelerate the naturul progress so fur an it is beneficial; to compensate for whatever may be its inherent inconveniences or disadvantages; and to guanl against the dangers or accidents to which our species is exposed from the necessary incidents of its progression. Su(;h practtical instruc- tions, founded on the highest branc^h of spoculative sociology. J. S. MILL 295 will form the noblest and most beneficial branch of the Political Art." We see what great, not to say chimerical, things he expects from the science. It is, however, clear to him that "even the foundations are but beginning to be laid." Nevertheless it was the aim of really scientific thinkers to connect by theories the facts of universal history ; " and a general system of social doctrine," it is felt, "should explain , . . the main facts of history." Accordingly, '* a Philosophy of History is generally admitted to be at once the verification and the initial form of the Philosophy of the Progress of Society." For his own part he only claims to have pointed out the proper method of in- vestigation and of proof. To others he leaves the achievement of the work. But have wo yet got such a philosophy of history as will ejcplain the main facts of universal history] The fact is, the thinking' and educateower, torts, and crimes ; as well as of the organs, the judicatures and tribunals, by which law is administerchilosophy, let us say for brevity, science, as in their infiincy they were one, and only became two in modern times. It is a fact, as Mill says, that increased scientific knowledge changes religions; it is a fact that within the past three centuries it has wholly changed our conception of the universe ; that it leads to and gives new scope for inventions ; that speculative philosophy, the theory of natural law, revolutionised Roman laws and improved our own j that government has been profoundly alfected }>y it in all modern countries ; that Benthaiu's utilitarianism has tlone for us more recently a similar service. The scientific spirit has affected invention, in«lustry, religion, law, and government, everything' but art and literature, which it has only indirectly afiected by its influence on religion, and by its furnishing hopeful and stimulating suggestions, and wonderful •' fairy tales" for art and literature to meditate upon. Since, then, it is the central social interest, and aft'ects all the rest, perhaps the history of science and i)hilos»»phy, the history of the human intellect, should be a part of dynamical sociology. But if so, it should be the history of the sciences in serial order as Comte gives them, — mathematics, astronomy, physics, chemistry, biology, not of course a minuU' or exhaustive one, J. S. MILL 301 liko Whcwell's History of tlm Indnrfive Sciences, There should then follow a history of philosophy down to our times, when, instead of being based on vicious abstractions, it uses only con- ceptions having real and scientific contents ; but philosophy can only be considered a social interest in so far as it has improved law, produced ethics, and corrected religion and our conception of the universe and the Power behind or immanent in it. But if sociology includes histories, even condensed ones, of all these things, especially the last, down to our days, it would be a very formidable work for any single person to undertake, or rather a work impossible to achieve, if others did not provide materials in previous fuller histories; and these have not yet been provided in all departments. No wonder then that Herbert Spencer, who alone, since Comte, has essayed the formidable task of constructing the science of sociology, though he has given good and well-generalised histories of political institutions, of ceremonial institutions, of industry, has shrunk from the task of attempting the same with the intellectual and iBsthetic histories, while he has only given us the early stages of the history of religion. But even if the task had been fully finished, and he had given us his generalisations from the history of science and philosoj)hy and aesthetics, the results would rather be parts of his Philosophy of Evolution than of a special Science of Sociology. For the idea of science implies a unity, a body of connected phenomena, articulated together and reduced to unity, under one central principle if possible. In the present case we have diverse phenomena which cannot be unified in their totality. If indeed religion and philosophy were abolished from the list as illegitimate subjects, then all the rest, except art, could, as we have seen, be connected with the scientific spirit and its history, and sociology might then include the history of these four, — government (including law), industry, invention, and intellect or the scientific spirit which governs them all.^ There would thus be a sort of unity, and all these ^ The latter is very nearly Comte's view. But it is not Herbert Spcncer'§, who admits religion and philosophy as legitimate subjects of thought. 3oa ENGLISH POLITICAL PHILOSOPHY subjects might be called sociology. But when religion, philo- sophy, and art are further introduced, I do not see how any possible unity nor consequently how a science can result They may be placed alongside the other subjects. A common method of inquiry may be applicablo to all, and a certain connection with the couteniporury state of the human intellect may exist ; but that is not sufficient to make such heterogeneous things into one science. And even if all the rest could be unified under the hegemony uf the speculative spirit, art will always be found separate and irreducible, because the object of the latter is the beautiful, which is fundamentally ditl'erent from the true, the useful, the just, all of which are within the province of the intellect or speculative faculties. There is, moreover, this further to be said, that, even if we omit general history, a science that is to contain, even in outline, a history uf all the sciences, all the inventions, all the philosophies, metaphysical, moral, legal, and political, all the religions, all the line arts, all the languages and literatures, and which further requires a knowledge of the general con- ditions and mutual relations of all these subjects of thought, is 80 impossible of realisation by any one single person, that it would require either qmniscience or all the experts of the world pressed into the service to produce a sociology under this conception of it. But, under any conception of it, sociology implies that social phenomena are subject to laws, just as in biology there are laws that never fail to operate. Now it would api>ear, since social phenomena depend on men's actions, and these on their nature, and as men's natures, their intellectual and moral and emotional qualities are very different, and some men are of far greater force and stature than others, in one sphere, bending and controlling others' wills, or making a great invention that never would have occurred to the rest, writing a grand poem, laying the foundation of a science, — it would appear as if the course of civilisation and progress very much turned on the J. S. MILL 303 ftppearancc of these superior spirits in these several spheres of human, activity, and that the rest hardly counted at all. It is certain that great improvements in laws and institu- tions were made by superior minds — by lawgivers like Manu, LycurjTUR, Mahomet — even though the multitude might spontaneously originate customs from convenience. It is certain that the first inventions did not occur to every- one, nor the subsequent improvements. A rude plough or spear might have been invented by many, — not the invention of letters, nor the art of tempering metals, nor in later times the spinning- jenny, the steam engine, nor the electric telegraph or the telephone. In like manner the foundations of the sciences themselves were laid by men of original capacity, and they were improved by similar men. The same is true of philosophy in all its branches, and even of religion ; its first founders were extra- ordinary persons, mostly thought to be divine or semi-divine; and the like, though in less degree, applies to the great reformers. As for art and poetry, it entirely moves forward through men of genius, only that here there is no improving on their work, though they may arouse in the rest something of their own frame of soul. Still more, the course of universal history has appeared to turn at certain great crises on the appearance of one man — a Julius Coesar, a Constantine, a ^lahomet, a Charlemagne, a Luther, a Napoleon, a Bismarck. Now if all this be so, the history of progress would seem to turn very much on such men. Any law of progress that can be laid down, it would seem, must be in a special manner connected with them. They are great social causes. They are great sociological facts as Comte regarded them. They should be special matter for sociology to inquire into. To calculate the effect of what they have done, to estimate the chances of their appearance, to find by what law thejr made their appearance in great numbers in the sixteenth and seventeenth centuries, while rarely one appeared for ages before ; why again a swarm of poetical geniuses appeared early in this century, after a barren atid dreary century in poetry, — such as theae should be amongst 304 ENGLISH POLITICAL PHILOSOPHY the problems of the social science, or at least of the philosophy of history, as they are the most interesting, wliether so con- sidered or not This question of great men in their relation to progress was raised by Mill a long time after his speculations on sociology in his Logic. About 1860, in a later edition, he raises it for the first time with reference to Buckle's History of Civilisation. He has learned somewhere that the course of civilisation has turned on the appearance of great men, and he pauses to consider how the fact can be reconciled with the reign of general law in the sphere of social phenomena, and in history, which must be viewed as a natural series of events without anything mysterious or providential. His solution is that *' such men may be indispensable links in the chain of causa- tion by which even the general causes produce their effects " ; and he adds, " I Ixdieve this to be the only tenable form of the theory. Without Mahomet no Avenocs or Caliphs of Bagdad or Cordova ; without Newton no Newtonian i)hilosophy, at least until there had been another Newton or his equivalent. It might have been produced, perhaps, in successive steps by inferior men coming after him. But even the least of these steps required a man of great intellectual superiority." The influence of a great man (or of a good government), of a Confucius, Lyciurgus, Luther, Themistocles, Julius Ccesar, he allows, but he thinks their influence tends to become less as compared with the broadening stream of other forces, and with the result that historical science becomes less subject to the disturbing influence of great or revolutionary characters. He is doubtless largely right as to this. Great men will play a less imj^rtant, less decisive i>art in the fut\ire course of civilisation, but I should be disiwsed to give a difl'eront reason for it than that which he assigns. The fact is that the kind of great men that have been needed in the past to lay the foundation, to construct, and all but complete the difl'erent sciences, will be no longer necessary for this part of progress or civilisation. A Newton is no longer necessary now that his work is done and astronomy nearly a completed science, and if a man like Newton were now born J. S. MILL 305 he ^Vould not find adequate scope for his genius. The like holds. in the mathematical, physical, chemical, and biological sciences, though perhaps not to the same degree* The work of the replaces, Youngs, Faradays, Lavoisiere, Barwins, Joules, and Kelvins, of the creators, is largely done, and only the lesser work now remains to bo done. Only the gleanings of the harvest are to be gathered, except perhaps in cliemistry, where a new element with new possibilities con- nected with it may still remain to bo discovered; or in physiology, where there is etill some work left for onother Claude Bernard. Again, if a potential Columbus were to come, there would be no New Worhls for him to discover ; the most he could hope to do would bo to reach the North or South Pole, or penetrate to one of the few remaining unvisited parts of Darkest Africa. It would be hazardous to affirm that there will be no more groat ]>hilosophers after Kant and Hegel, especially as able men are still trying to construct new systems, but perhaps it would be safe to say that there only remains to incorporate with the best past speculation the results and conceptions of the physical and chemical and biological sciences to get as far as men are likely to get in their concejv tion of the universe and of its cause. 15ut in moral and political philosophy discoveries certainly remain to be made, in spite of the fact that lx)th are as old as Plato and Aristotle, and in particular that the ablest minds in i)ngland have devoted themselves for more than two hundred years to the subjects. As yet there is little unanimity, in consequence little of what can bo properly called science (though it may be called philo- sophy) ; less than might have been expected, especially in moral science, making all allowance for the complexity and subtlety of questions in their moral aspects that daily arise, ^fore agreement is certainly required on the broader and rougher and more recurrent topics that concern law and politics as distinct from those relations of life which are too delicate and im- palpable to be dealt with by positive law or positive moral rules. In these cases moral science will always be a mo?t dilKcult science to apply in practice, owing to the complicated 30 3o6 ENGLISH POLITICAL PHILOSOPHY and sometimes contradictory considerations that have to be taken into account, where, in fact, there may ho no rule applicable to the case, neither the utilitarian rule, nor the rule of conscience, nor the rule of opinion. As for great iwets in the future, such may come, as they have conic in the past, but the conditionn do not repeat them- selves. Great poets appeared in the Elizabethan age, imrtly bticause it was a hopeful and exciting age, — with new continents, new doctrines in religion, new theories of the earth and hoavens, new learning, new sciences, — all conditions which can never again recur. Add the fact that the EngliHh language had become a perfect instrument for the poet, and the national mind sutliciently expanded to relish his work, and we have a set of conditions specially favourable to the appearance of a grwU jKJet like Shakespeare, though they do not account for him — what science could explain him 1 Again, at the end of the last century and first quarter of this, we had favourable conditions : a new love of nature (how produced we do not incjuire) j new golden and partly chimerical social hopes ; marvellous dis- coveries and inventions ; and accordingly we had many great poets — Burns, Byron, Coleridge, Wordsworth, Shelley; and the last who felt the new impulse, Tennyson, is only gone. When can we expect another 1 It is not easy to say. Perhajw when the state of religious thought is more favourable ; when the materialism, scepticism, pessimism have given place to more robust beliefs; when faith, "all but lost in the doubts that darken the schools," agaui emerges from its temporary eclipse, a great poet may again appear ; especially as nature is still as beautiful as when Wordsworth discovered her, ami life is as varied, its tragedy as heart-shaking, and its comedy as interest- ing as ever. Great statesmen are less to be looked for in so far as jxirt of their work has been already done in the unitication and con- solidation of the greater States. The work of Napoleon, of Lincoln, of Cavour, of Bismarck, during the present century, does not require to be done over again. But the great and populous States of the near future will give rise to new problems, both internal and external, and their conduct will J. S. MILL 307 deiuiuid statesmanship, though it may be of a different order, (icrmany may rc(i\uro a statesman to maintain her unity, as slic needed both a great statesman and a great soldier to achieve it. England may require one to effect the federation of her great empire ; while the very vastnoss of the Russian Empire, with its points of contact with so many other States, both strong and weak, together with the peculiar character of her only half-civilised multitudes, will require staU^^smen and adminis- trators of high capacity. ^Foreover, in all those great States there are important internal questions as to the relation and welfare of the different classes which demand knowledge and wise and skilful handling ; so that, on the whole, one is inclined to think the call for able statesmen and rulers will not He less urgent in thp future than in the past. It is not quite the same as respects the great soldier, who will probably play a less important part in the future. For war has conferred on mankind nearly all the benefits it was in its nature to give. It has united men into large kingdoms and nations, within which the arts of peace and of civilisation have been fostered, and it has developed certain important and necessary virtues. It has largely done its necessary work ; and were mankind solely governed by reason and the sense of their interests it should cease. At present there are less real reasons for war between civilised States, though there may be some. There may be justifiable wars as of old, " to preserve the balance of power," to prevent one State from becoming too great, and therefore dangerous to the independence of its neighbours. Wars may even arise regarding the division and appropriation ' of the States of ** sick men," whether at Sta^nboul or Teheran or Pekin, though such wars ought not to arise, because an understanding can always be reached in these cases much better and much less expensive than a settlement by the sword. There might be a war between France and Germany, or between Russia and Germany ; still wars have diminished in our century since the Great War, and they will diminish more in future, partly because the very success of science and in* vcntion in devising new methods of destruction tends to do away with them as too terrible and deadly, while the general 3o8 ENGLISH POLITICAL PHILOSOPHY pursuit of wealth and the mutual commercial intercHts of nations tend in the eamo direction. What we see in the past is that progress in the chief branches of human effort has depended, in addition to the chances of history, on a succession of more or less great men, each succeeding one of whom saw farther and clearer, did better than his immediate predecessor. This applies to all the sciences, to invention, in part to philosophy and religion, much less to art. It is also true that a purt of the process of civilisa- tion cannot be referred to individual men at all, whether great or small. The slow evolution of language as a more perfect instrument of speech and thought was not the work of any one, but of many. The evolution of laws and customs uncon- sciously by people in general and no one in particular are other instances. Still, as Mill contends, the greater part of civilisation is referable to the succession of great men. And now it appears that in certain important directions we have got nearly as far as we are likely to get. We are perhaps within a measurable distance of the time when science will be complete, philosophy finished, and when the " war-drum will throb no longer," when in conse(iuence neither the creative savant, original philosopher, nor the soldier of genius will be longer necessary or even possible for want of sphere : must we say that progress will l)e then finished ? that man will have thou achieved his destiny on the i)lanct, so far as improvement is concerned? In one sense. Yes; and Mill's notion of indefinite progress in all directions, conceivable and even inconceivable, is visionary. For we know all the possible directions within which progress or cflbrt is jmssible. We have already indicated them more than once. They arc, science, government, art, philosophy and religion, industry and invention. Now science is nearly completed, art in all its branches has probably already reached its highest culmination. * We shall not })robably transcend Shakespeare, or IJecthoven, or Michael Angelo. We shall not get much further than Spinoza, Kant, or Hegel, though a system may appear which will give more life and reality and pertinence to their abstract thought by mciin« of conceptions supplied by science. This J. S. MILL 309 only remains to be done, and it has been partly done; and whea it is fully done, and when Biblical Criticism liaa said its last word (we are nearing that issue likewise), in what direction can we go further? It would seem as if only inven- tion were left. Ap])arontly we ran have new inventions in- definitely, new practical appliance;^ to increase our comforts, conveniences, and power over nature. Material progress is still possible, of the same kind as the steam engine, telegraph, telephone, and the thousand lesser inventions. Wealth can be increased and new processes discovered for creating more wealth. All the practical arts can be further improved, both those that add to wealth, com- fort, luxury, and those that add to health, such as medicine and surgery. The industrial organisation can be improved. Perhaps the social organisation which has spontaneously developed can also bo somewhat improved. But here Mill, though he hopes for much, has in his mind a distinctly retrograde and indeed impracticable and chaotic hope. He expects classes to be more or less levelled and the great employer of labour and the great capitalist to disappear — a point on which Comte, who perceived the tenacity of a relation nearly as old as human society, the relation between master and servant and between employer and employed, had much sounder ideas, But Mill is right on one point. He thought that human character may be improved, which is true, though the work is slow, but just because it is slow the process will occupy a long time. Wo have acquired much knowledge. We have amassed vast wealth. What is wanted is a wider diffusion of the results of civilisation — the knowledge and the culture— perhaps also the lessening of the inequalities of wealth, though not at all to the extent dreamed of by Mill. And he is again right in believing that we all want, the rich as much as the poor, an improved art of life, an art to teach us both how to make life higher and better, and how to make the most of it both for ourselves and others ; a kind of knowledge, a species of practical science or art in which we are all much unlearned, to which Mill refers in terms of high praise, but of whose precepts he has taught us little. 3IO ENGLISH POLITICAL PHILOSOPHY Until men are morally mised, ami until this much-needed art has been learned, it will be too soon to say that progress is finished, and that all that men have henceforth to do is to settle down to count and enjoy their gains ; — though it is true that progress is more limited, has less varieties than Mill sup- posed, and in some important directions has nearly reached its limits. §9 AVe may say, finally, of Mill in relation to sociology that he had a very imperfect conception of the science ho invoked ; that ho only caught partial and successive glimpses, without ever having a clear, consistent, and steady conception of it. In this particular field his mind was essentially barren; and though he has been praised for his discussion of the appropriate method of inquiry in the moral and political sciences, his view OS to method is as vacillating and uncertain as his view of the subject itself. He was always on the lookout for some- one to give him light, and always in the end broke away from him. First lientham in ethics and politics, then, his narrow- ness being discovered, Coleridge as a corrective ; then he turned his eyes abroad to the (ierman, Herder, to the French philosophical historiuns, Michelet, Guizot, Comic, the last of whom had, on the whole, the greatest influence over him. Finally, in his wife he afl'ccted to discover the greatest philo- sopher of all, to whoso ** all but uirrivalled wisdom " ho ascribed all that was best in his own writings. We see the same un- steadiness of view with regard to political economy, which he considered as a branch of sociology. We note first his reverent admiration for Ricardo as the " creator " of the science ; then we observe his ropcrty, but not this: not the freedom of the individual spirit that, in addition to its relation to its fellows, feels itself a free imperial spirit in its own private spiritual domain, that none should invade ; with a unique personality that asks the largest si>aco for exi>ansion in its own way ; free as much as possible from the pressure of laws, much more from the yoke of general oi>inion in matters not concerning the public, but in which it tends to interference. This sphere, the sacred cittKlel of self, he wished more free from intrusion and invasion than the Knglishman's house ; and hero he was right, and in his little book on Liberty he has spoken the last word on this im|>ortunt subject. II. ON REPRESKNTATIVE GOVERNMENT § 1 After a long intervftl Mill again appeared before the public in liiH Considerations on Representative Government (1861), a work of the Fame nature as lJentham'8 Plan of Parliamentary Reform^ because he pleads for further reform, but a more systematic work, going much beyond Bcntham's ideas and correcting some of his mistakes. Since the appearance of his Principles of Political Economy (1848) Mill had learned a good deal from the teaching of the new historical school, and something from disappointing experi- ence. We hear no more of the grand science of society, with itfl appended noble application to political art ; no more of some wonderful law of progress gathered from past history that was to govern and assure the future; no more of the elevation, material and moral, of the working classes, and the bringing in of the reign of social justice by the simple device of co- opcmtive production, under which the labourers become their own capitalists, with the consequent disappearance of the great capitalist employers. Ilis great expectations were disapiwinted, and he was himself somewhat disillusioned and sobered. Still it is a great thing for a man to have wished to save mankind, and to have devoted twenty years of enthusiasm to the task, even though he fails. It is a good thing to have aimed at solving the formidable and ever-present problem of poverty, even by so unlikely a means as Malthus' principle of population; to have wished to raise the condition of the toiling many, though by a chimerical scheme of co-operative production ; to have desired to point out the path to truth and well-grounded belief, though «8 314 ENGLISH POLITICAL PHILOSOPHY by 8uch uupromUing meaub as u new theory of logic, in which, AS regards the most important half of his subject, the whole field of moral and political science, ho shows himself in a fog as to the nature of the subject, and still more as to the logio of it, the appropriate method of inquiry and proof. He had reached the age of disillusion in most men when writing the Representative Oovernment ; and the book shows some signs of it. It is set to a much more modest key than his two former ambitious books ; it has no great hopes ; there is no jubilation at the coming triumph of democracy, but, on the contrary, some apprehensions that the labouring classes may try a shorter way to raise their material condition and get the command of capital than by his plan of co-operation, which he appears to have forgotten. On the whole, it is a good and sensible book, marked by clearness, common-sense, and in places by a certain pmcticalness, due rather to the permanent official and his contact in the India Office with political ques- tions in their living and actual state, than to the speculations of the political thinker. Only in two places his old tendency to illusory hopes still appears : where he expresses his faith in the educating influence on the citizens of some imrtici})ation in political functions and political discussion, and again where he thinks that the representi\tion of minorities and plural voting would be an eflectual check on jwssiblo democratic tyranny. Repre.sentJitive government is ideally the l)est, he thinks. Ihit a preliminary question arises. Have people any choice in the matter of their government 1 Can they choose the best government, if only they were assured of what was the bewtt For if not, there would seem to be little profit in proving the merits of a particular kind. And there is a school of political thinkers, the new historical school, which lioltls that a form of government iH the rcHult of a people's history and temperament, is the outcome of the strongest and most influential social forces; and that a people must accept the government they find themselves under as the most suitable and the best for them ; that ** constitutions are not made, but grow " ; that, therefore, great revolutions and organic reforms in government are evils; finally, that nothing can be done by legislation or J. S. MILL 315 constitutional changes, except to mitigate the evils that accom- pany all kinds of governraent«». And he might have added that the same school holds that law is a necessary evolution, largely popular in origin, much the same under whatever government, and by consequence that laws, as well as govern- ments, are, after the long human experience of the species, nearly as good as they can be, though new laws may be required for now circumstances. The general view of the historical school was at first very distasteful to the ardent and reforming character of Mill, full of Utopian hopes of progress to be made solely by the reform or abolition of "bad laws and institutions." For according to this view the bad laws and institutions are half absolved, sometimes arc relatively gooil, so that the reformer's enthusiasm is checked, and he must in reason carefully weigh and select l)efore he attempts to destroy. In fact, the new school is largely a justification of Burke's defence of society and existing goverinnents, as contained in his liefledions. Accordingly Mill sets himself to combat the views of the historical school in the fii*8t chapter of his book, " On Forms of Government, How far a Matter of Choice " ; but in fact he is half-conquered by them. Still he continues to argue. He denies the position of the historical school, that " forms of government are not made, but grow." The form of government is a matter of choice, of will and purpose, if three conditions are fulfilled. " The people for whom the form of government is intended must be willing to accept it; or at least not so unwilling as to oppose an insurmountable obstacle to its establishment They must be willing and able to do what is necessary to keep it standing ; and they must be willing and able to do what it requires of them to enable it to fulfil its purposes"; the word "do" being used in a wide sense, including to "forbear" from doing anything opposed to these conditions. These are large concessions to the historical school, or as he prefers to call it the "naturalistic theory of politics." It results from them that some races, like the Swiss or the people of the United States, could not endure a monarchy ; nor others, such as the Russians, the Turks, the Chinese, the 3i6 ENGLISH POLITICAL PHILOSOPHY Hindoos, Asiatic peoples in general, a constitutional monarchy or -a republic. Others, again, may prefer a free government, yet if they are unequal to the exertions necessary to preserve it, or will not fight for it if it is attacked, or if they allow themselves to be cheated out of it and lay their liberties at the foot of a great man; — in all these cases they are unfit for liberty. A rude and warlike people may re(iuire a despot to keep them in order ; a timid, passive people, like the Hindoos, for the opposite reason, need a master or a paternal ruler. In parts of Europe where the people are revolted by an execution, but not shocked at an asHUHsination, the public- authorities must be armed with sterner powers of repression. Ihit again, and this strikes nearer home and concerns ourselves : "Representative institutions are of little value, and may bc« a mere instrument of tyranny and intrigue where the gener- ality of electors ... do not bestow their suffrages on public gnmnds, but sell them for money or vote at the beck of some- one who has control over them, or whom, for private reasons, they desire to propitiate." It would seem to follow from these considerations that a people has small choice in the matter of its government, and cannot easily be induced to embark on untried (Xilitical paths. But Mill thinks that people can learn new things, can entertain the idea of new and better political institutions, the power of adapti\bility of the people being " one of the elements of the (juestion " ; and this last would seem to be Iwrne out by the fact that in thi^ »:entury most of the older and more civilised nations of Kurope have adopted jjarliamentary institutions more or Icsh after the British model. To the objection that *' political forces are not amenable to the direction of iHjliticians or philosophers, that the government of a country is fixed and determined beforehantl by the distribution of the elements of social })ower," and so much so that whatever is the strongest power in society will obtain the governing authority, Mill replies that the statement is true, but requires limitation. The strongest power cannot mean mere numbers, mere thews and sinews, because in that sense, as the people are the most numerous, pure democracy would be J. S. MILL 317 Uic only govcrnnioiit. Property and intelligence niUHt be ftdded ; but ovon then, though nearer the truth, it would not be the whole truth, for a weaker party in numbers, wealth, and intelligence, by the mere possession of the government may long maintain predominance, though the position would be one ' of imstable equilibrium, which, if departed from, could not bo easily restored. There is a stronger objection, he thinks, to the liistorical theory of government. Thope who wield the power in society are influenced by opinion, and a person of strong beliefs is "a social power equal to ninety-nine who have only interests." A philosopher who can persuade people that " a certain form of government, or a social fact of any kind," is preferable, lias done much towards ranging the iK>wer of society on his side. Time may do all the rest. When the lirst martyr was stoned at Jerusalem his party was the strongest, for so it turned out. Luther, at the Diet of Worms, was a more powerful social force than the Emperor and all the princes assembled. And in politics "speculative thought is one of the chief elements of social power." The eighteenth century in its second half showed liberal reforming princes and emi)erors ; even the pope was a reformer, while the French noblesse were penetrated with the new liberal philosophy that was to destroy them. Moral conviction, as well as speculative thought from which it usually results, is a social force. It abolished negro slavery. When the educated i)ortion of the community are convinced that " one social arrangement or political or other institution is gowl, another bad, very much has been done towards giving the one and withdrawing from the other that preponderance of social force which enables it to subsist " ; because the educated classes have much influence over the uneducated portion of the community. We have here a great advance on the absolute position, and tlie abstract methwl of Hobbcs and Locke, the latter of wliom declared that in no case was absolute government legitimate. With the historical school, as with Mill, who so far agrees, it may be the l)est, it may be absolutely necessary, and therefore legitimate. He is still more away from the iMwitiun of llobbcsi 3l8 ENGLISH POLITICAL PHILOSOPHY wlio in all cases prefers an absolute government to a represen- tative one, and who defends his views by striking reasons. According to the new view, what is l)est for one people is not therefore best for another. Whut is biist even for a jmrticular stage of one people is not best for another stage of the same people. Representative government is ideally the best for an advanced jieople, but not for all such, e.g, not fi»r a i>eople like the French. Kven with the few nations which it does suit, it rtH^uires safeguards to prevent it from Ixiing a bad, nay, the worst government. And these views of the relativity of the kind of government to the people and their stage of i)rogres8 he tells us he had learned from the historical school of this century, though as a matter of fact they had been vaguely anticijiatcd by Burke. He next raises the question of the true criterion of govern- ment. How are we tu judge what is a good government, what is a bad one? The <;riterion cannot be that it harmonises onler and progress, as Comte asserts, or permanence and pro- gression, as Coleridge puts it. For what do we mean by order t Is it obedience 1 This is indeed a condition of obtiiining other good from a government, but not a good in itself. But |>erhaps order means the cessation of private quarrels, as manifested in a law-abiding people. This sense, like the former, expresses merely a condition of government which may lie fultilled, and yet the government may be of the very wor^t kind. Suppose we define order " as the ))reservation of all kinds and amounts of good which already exist, and progress as consisting in the increase of them." But in that case the conditions of progress and order are not opposed but the same, the only dillVronce being that more is required for progress than order. The same qualities in the citizen, the same social arrangements, a good institution of police, a good judicature which promotes order, is also one of the things most conducive to progress. So of a good system of taxation and finance. Consequently these are not two opjMjsevl ends of good government, since progress implies order. J. S. MILL 319 Shall wc, then, say progresH alouc is the end of government! It is, in fact, " nietaphyeically dofenRible " to say so ; but it only suggests "^part of the truth, though it contains the whole. It suggests improvement, while it is just as important to prevent decline ; the same causes, the same qualities, Ixiing required for hoth. Since, then, the c(»mmonly accepted division of social require- ments into order and progress is luiscientific, we ask, What are the ends that a good government should propose to itself 1 The best government, according to Mill, is that which best tends " to promote the general mental advancement of the community, including under that phrase advancement in intellect, in virtue, and in practical activity and efficiency"; and which best organises " the moral and intellectual and active work already existing, so as to operate with the greatest effect on public affairs. . . . Government is at once a great influence acting on the human mind, and a set of organised arrangements for public business; in the first capacity, its beneficial action is chiefly indirect, but not therefore less vital." Any government which does these two things best— which raises the mental nature of the unit, and which employs the best means for the public business of the State— is best. As to these two, the last, he tells us, is nearly the same under all governments and at all times. Laws of property, principles of evidence and judicial procedure, systems of taxa- tion and financial policy under all civilised governments, tend to be assimilated.^ They are related to certain sciences — general jurisprudence, principles of civil and penal legislation, ]x)litical economy; and there is a tendency in the most enlightened governments to follow the precepts suggested by these sciences. Of course they would not apply equally to all stites of society, but they could be adapted to any where the rulers were so far advanced as to understand them. It is far otherwise in regard to the other function, of govern- ments as a means of raising the character and intelligence of the governed. From this point of view institutions and govern- ments recpiirc tt> be " radically diflcrcnt," according to the degree > Clt*|t. ii. (1. 35. 3ao ENGLISH POLITICAL PHILOSOPHY of advancement of a people. The government that would suit advanced would not suit backward racen. Races and tribea exist in all stages of advance, some being little above the lower animals ; and the kind of government is the moHt imix)rtant of the agencies, next to religion, in helping them to advance further. The one thing needful in a government is that its action is " favourable, or at least not unfavourable, to the next step which it is necessary to tivke in order to raise them to a higher level." Hence a people in a state of savage independence needs an ■ absolute ruler. Even to reconcile brave races to monotonous industry instead of to war and rapine required a desixit, and even one who would compel them by force to labour. Slavery was even a necessary institution at one time (and, accoiiling to some, marked a stiige of advance on the previous system of the massacre of prisoners). But to lift higher a people in a state of slavery required a less stern despotism than was neces- sary for a race of savages. They have learned the lesson of obedience, but, left to themselves, they are helpless. - A internal despotism after the pattern of the St. Simonian socialism, or the government of the Incas of Peru, or the Jesuits of Paraguay, best suits their case. In general, the best form of government, fn»m this point »»f view, is that which most favours further progress, In-aring in mind that progress implies (piwervation of the good alreatly gained, as well as the attainment of further good. Savage tribes i>rogress when they have learned to ol)ey, Imt not if the obedience makes them slaves. ^lore generally, a government, even though it might carry its people through one or two stages, would still be a bad one if it unfitted them for further progress, as the Egyptian hierarchy and the Chinese paternal despotism did, because under them mental liberty and individuality were starved. It was just the op|M)site with the Jews, owing to the inestimably precious \uiorganiseil institution of the Order o( the Prophets, through whom further mond and religious pro- gress was made possible, and also with the Greeks, who by their free play of mind uuido progress in philosophy, science, and art. J. S. MILL 321 On tliis question of the most suitable form of government, we must take into account not merely the next stage, but all possible future stages. Hence an ideal of the best form must be framcil, that is, of the kind of government which would be most favourable to all future stages of progress, and all kinds of it, provided the necessary conditions existed to give effect to its good tendencies; next, the mental conditions necessary in the people to enjoy such a government should be pointed out, as well as the defects which make it unsuitable to some people. The ideally best form of government is some form of the representative system, though it is not of course adaptable to the circumstances and mental condition of all communities. He thus avoids the mistake of Locke and the political thinkers of past centuries, whose abstract and unqualified arguments would equally prove it the best government for Malays and Bedouins, or savage tribes untamable as tigers, except by a strong dominating personality. §3 Tliere are some who think (like Carlylc) that if a good despot could be always available, despotic government would be the best. This Mill considers a most pernicious misconception,, and one fatal to all sound speculation on government. It is supposed that under the good desj^t the best laws would be made, bad laws would be repealed ; the most upright judges would administer them ; justice would be pure, taxes light and equiUiblc ; the fittest persons would fill all offices and places of trust Let us grant all this, though the concession is much. But the despot would have to be not only a good ruler, but an all-seeing one, to realise it all, No one man would be equal to all the necessary work of supervision, the immense work of administration ; he would therefore have to discern and to select many honest and able men to conduct business, also the few eminently able and honest men that could be trusted to supervise wherever he could not do so himself. A man of extraordinary ability and energy^ is postulated for all this power of selecti(.n, ami all this labour— in fact, the good despot would shrink from 21 3aa ENGLISH POLITICAL PHILOSOPHY the herculean task, unless he felt that greater evils would result by his so doing. Suppose even that we had the good despot, we have only one man of superhuman mind and energy managing all the atlaii's of a mentally passive people, who exercise no will or thought in regard to their collective interests. All is done for them, decided for them, by a will not their own, which under penalties they must not disoboy. But what kind of human beings would be formed under such ii system ? They could not use their intellects on any speculative question that even remotely touched politics. They might, perhaps, make suggestions on pmctical matters, which would probably not reach those in power or would not be regarded by them. Who in such circumstances would take the trouble to think, when their thought would have no outward ell'ect ? and who would qualify for functions they could never hope to exercise ? Ment;il exertion will not be made if no outward results are likely to follow. Still there may bo some intellectual life under such a polity. The common business of life will call forth some. Savants may cultivate science for pleasure or profit. There will be a bureaucracy of public officials, who must receive some empirical political education. There may even be an organisa- tion of the best ability of the country in some special direction favoured by the despot, most commonly war. But the general public remain without information and without interest on the greater matters of practice. Such knowledge indeed they may have, as one may have of a mechanical contrivance from reading about it without ever handling one. Patriotism in such a case dwindles and dies {or lack of nourishment ; action is the food of feeling; and if there is nothing a man can do for his country, ho will not care for it. The desj^t, as has been said, is the solo patriot in his country. Religion, indeed, remains, but in such circumstances it ceases to be a social concern, and becomes a iMsrsonal alFair between moii and his Maker, which shuts its votary ns much out of human sympathy as sensuality itself. Philosophical speculation may perhaps remain for a few minds " who take an intellectual interest in speculation for its own sake." The great majority will give themselves up to J. S. MILL 323 lunterial interests, and, these assured, to the " amusement and the oruanicntation of private life " ; all which means, if history teaches anything, that the era of national decline has set in, that is, if the nation had ever reached any considerable degree of progress from which to decline. Thus Greece and Rome under despotism fell after a few generations into the stagnant condition of an Oriental SUite, which does not always mean stupid tranquillity with no danger of anything worse, but probably conquest and reduction to slavery by neighbouring vigorous barbarians, who had maintained their freedom and the energies associated with it. Such are the essential tendencies of desjwtic government, unless the despot tempers his desjiotism, which a despot may do, and by doing which he would do away with many of the objections urged against despotism. But this situation would invite a conflict between him and the people, which could only have one ending — that, namely, of constitutional royalty. The despotism would then be chiefly nominal, and would realise neither the advantages of despotism nor those of freedom. " There is no difficulty," ho thinks, " in showing that the ideally best form of government* is that in which the sove- reignty or supreme controlling power in the last resort is vested in the entire aggregate of the community ; every citizen not only having a voice in the exercise of that ultimate sovereignty, but being at least occasionally called on to take an actual part in the government, by the personal discharge of some public function, local or general." '-^ Such a completely popular government, he thinks, is more favourable to present good government, and tends more to elevate the mind and character than any otKer. This, he thinks, can be easily shown. For the interests and rights of the majority are only safe from evil at the hands of other classes or interesta if they are in a position to stand up for them, as they are in a popular government, and in that alone; and secondly, the general prosperity of a nation depends essentially on the self- depending, self-helping character of the people, and not on what * R^presenfative OovemnufU, chap. iii. pp. 45-48. » Jhid. p. 63. 324 ENGLISH POLITICAL PHILOSOPHY others, iucluding the agenta of a well-disposed despotism, can do for them. Through the influence of these two principles he argues that free communities were freer from social injustice and crime, and also more prosperous than any others, or themselves after they lost their freedom. This is clear if we contrast the free States with the contemiK)rary de8ix)ti8ni8 or oligarchies, *'the Greek cities with Persian satrapies, the Italian Republics and the free towns of Flanders and Germany, with the feudal monarchies of Kuropo ; Switzerland, Holland, and England, with Austria or ante-revolutionary France. Their superior prosperity was too evident even to have been gainsaid ; while their superiority in good government and social relations is proved by the prosperity, and is manifest besides in every page of history." * It is true that in no nation had freedom been enjoyed by all the people, not even in England or HoUanil.'-^ But every extension of freedom is good, and the participation of all in the bonetits is the ideally perfect conception of free government. As to the comparative inttuencu of governments on national character, the popular government is the best. A duHpotisni or an oligarchy favours the passive type of character, because it does not oppose them in any way, but is always obedient ; while the government of the many favours the " uncontented," aspiring, energetic type, from which all real improvements come. A jMjpular government favours and tends to furiu Huch characters, who are neither happy under a despotism nor desired by the despot. It is a great mistake to suppose, as many do, that contentment, which is sometimes a virtue, is to be fouikd with the passive tyi>e and under despotic governments; far more likely there is intense envy at the success of the self- helpers ; — while even contentment itself is not a virtue, unless it be contentment with material fortune as a necessary condition to its |)osses8ors in order to strive after higher things, or to improve circumstances with which they are not contented. In this way freedom invigorates the character. Still more im- *','} ' JUj>re»cntatiir OovrrnmeHt, fhup. iii. p. 67. * * From wliiuh it may bo UoubtoU if the proMpiTity of KiigUnd Man due to hor frvcUoiii chioHy. J. S. MILL 3,5 jwrtiiit is the discipline of character which comes from the discharge of some social, some public function, such as sitting on a jury, or taking a share, however limited, in local government. Doing something for the public takes a man out of his own narrow life of routine and selfishness, while "if the amount of public duty assigned him be considerable, it makes him an educated man." Even more beneficial is the moral part of the instruction afforded by the participation of the private citizen, if even rarely, in public functions. ** He is called upon, while so engaged, to weigh interests not his own ; to be guided, in case of conflicting claims, by another rule than his private par- tialities ; to apply at every turn principles and maxims which have for their reason of existence the common good ; and he usually finds associated with him in the same work minds more familiarised than his own with these ideas and operations, whose study it will be to supply reasons to his understanding and stimulation to his feeling for the general interest. He is made to feel himself one of the public, and whatever is for their benefit to be for his benefit. Where this school of public spirit does not exist, scarcely any sense is entertained that ]>rivate persons, in no eminent social situation, owe any duties to society, except to obey the laws and submit to the govern- ment. There is no unselfish sentiment of identification with the public ; every thought and feeling, either of interest or of duty, is absorbed in the individual and in the family. The man never thinks of any collective interest, of any object to be pursued jointly with others, but only in comj^tition with them, and in some measure at their expense ; a neighbour, not being an ally or an associate, since he is never engaged in any common undertaking for jj8int benefit, is therefore only a rival. Thu6 even private morality suffers, while public is actually extinct. Were this the universal and only possible state of things, the utmost aspirations of the lawgiver or the moralist could only stretch to making the bulk of the community a flock of sheep innocently nibbling the grass side by side."^ Hence it follows that a free government is the best govern- ment, and the more of it, the more who enjoy its benefits, the * BrprcseiUaHtt OovernfnctU, chap. iil. p, 68. 336 ENGLISH POLITICAL PHILOSOPHY bettor. But as it is impossible that all the people of a country or even all the people of a large city should directly participate in it, it follows that a smaller number must be selected to represent the rest. Hence the government must be representative. §4 • Such is his proof that a popular government is the ideally best form of government for advanced races — a proof which consists chiefly in appeals to history and to principles of human nature to show that despotism lowers the character, and that free government raises and expands it, while it is at the same time more favourable to general prosperity and the interests of the greater number. The latter is probably true, but that it tends to develop a higher type of character is a more doubtful matter. To take our own history. Is it certain that the average Englishman in the time of the Tudors, when the government was nearest to l)ersonal rule or to a desi)otism, was of an inferior type to the average voter of to-ilay? Was he not as sturdy and high- spirited ? If he let King Henry viii. rule him rather despoti- cally, it was because he wished to be so ruled ; it was with his own will and consent that he was so governed by the able and energetic and strong-willed and high-spirited prince, whom he further regarded as his protector against oppressive landowners who turned arable lands into pastures, as well as his defender, along with his own good arms, against the French or the Scots. The Lancashire man had the martial virtues needed to stand firm at Flodden, and the Devonshire man, in Elizabeth's reign, had the daring needed to "singe the beard of the King of Spain," the most potent prince in Christendom, at the Armada and afterwards. And did not the Englishman show his spirit even against the redoubtable Henry vin. himself when the latter taxed him too heavily, ur interfered with his religion, by rising in insurrection, which was the old way of showing that the will of the people had got out of focus or coincidence with the will of the king? The average man was prolwbly a bolder, braver, more energetic character in the jsixteenth cen- J. S. MILL 327 tury tlmn the man of to-day, bccauBc every man was then a potential soldier. He was more patriotic, hecause lie was often called upon to fight for his conntry, if not to give his vote. He was as good a father, husband, and neighbour; he had quite as much i)ublic spirit, even without sharing the limited franchise of the time. All this applies to Englishmen in the times of the Tudors, when our government was nearest to' a monarchy or to a despotic rule. And on Mill's principles the time of degeneration and decline should have set in. The despotism should have en- feebled the spirit, made men distrustful of themselves, wanting in the solf-helping virtues. It should, but it did not. On the contrary, never di<)urers, loafers, and men who dislike labour, tap-room orators, and the lower rank and file of professional politicians — tyi)es who are by no meauH * Sec on this point Quinet's interesting Ifistori/ of the French Jicvolu- tioHt vul. iii. J. S. MILL 329 ideal products of the ideal form of government 1 There is nothing lofty or elevating in the lower walks of practical politics, and it does not promise much in the way of general education to the electors. Prolmbly, so far as ])oi>nlar government is at all a means of education, it will come from the teaching of the leading politicians on certain occasions, or the perusal of their speeches in the newspaper, or the instruction of educated persons in their neighbourhood, or perhaps of their weekly newspaper. The men of light and leading can educate the electorate to some extent by directly addressing them, that is, they can give them light on political questions. And it is most important that they should do so in order to counteract the effect of the teaching of professional agitators and demagogues, the flatterers of the Demos. On the elementary principles of politics ^nd on important political and social questions they can address their intelligence, and, if pains be taken, they can enlighten it a little. At present they aim too much at the man of average education, while they should aim much lower. No doubt it is more easy for an educated man to address an educated than a comparatively uneducated audience j but the importance of the matter makes it well worth our politician making the attempt to de8(!ond to their level, and not to speak over the heads of the labouring classes. Politicians can do a little for their political education in this way, but little or nothing for their moml teaching, except now and then when they are called to distri- bute school prizes and address the young. Moral education is for the clergy, the schoolmaster, the parents of the young, and for a man's own self when arrived at years of discretion. The discipline of life, the struggle for existence, educate him morally or immorally as it happens ; so that finally, in spite of all Mill's talk about the elevating and moralising tendency of taking part in political or public functions, I do not expect that much good will come from that quarter. §6 Even according to Mill himself, representation is only the best government under the three conditions before specified. 330 ENGLISH POLITICAL PHILOSOPHY The people must be willing to accept it, willing, if necessary, to go out and fight for it, willing to do what it asks of them to fulfil its promises. It is only suitable for advanced races, and even if an advanced race like the French are willing to lay their liberties at the feet of a dictator, and allow and invite him to bo an absolute ruler, they are not fit for liberty ; it is not the proper government for such a people ; the truth being that France alternately admirOvS both a Dictator and The Republic, and, finding ills in both, gets desirous of a change, which, as Hobbes has explained to us, is rather a general weakness of nations. It comes to this finally with Mill that representative govern- ment is only fully suited to the Anglo-Saxon race, the Swiss, and perhaps to the people of Belgium, Holland, and Italy. It is not suited for a mitiou of place-hunters like the Greeks, in whose case it merely serves to quarter on the country a number of pensioners, to the increase of the usual expenses of the State. It is not suited for the South American States in a state of chronic revolution and " pronunciamientos," still less for Russia, Turkey, China, India. It is only the best government for a very few countries. Even with them, unless minorities can be specially represented, contrary to the principle of democracy, OS understood by Hobbes, Locke, Rousseau, Bentham, and oven liurke, who foresaw and feared the danger of tyranny from democratic majorities, it is a bad government, and may be the worst of all. Those are large qualifications of the merits of representative government. Let us examine them more closely j but first let us consider the proper functions of the representative bodies. §6 ^^The meaning of representative government is that the whole people, or some numerous portion of them, exercise, through deputies periodically elected \)y themselves, the ultimate controlling iwwer, which in"^ every constitution must reside somewhere. This ultimate power they must |X)S8e88 in all its completeness. They must lie masters. J. S. MILL 331 whenever they please, of all the operations of the govern- ment." » This i8 true. The people under it are in the last resort sovereign. All the attributes of sovereignty are vested in them, not in king or Parliament. liut they, from the nature of things, can only exercise their powers through agents or representatives, and their only direct act of sovereignty is the choice of these agents, and it may be the pressing on him of special instructions (the exacting from him of pledges). The people, being too numerous, cannot directly make laws ; they cannot administer public business, except under municipal or local government ; they cannot administer justice (save in the subordinate position of jurymen), but they can appoint the representatives, who appoint the Prime Minister, who chooses his subordinate ministers and appoints the judges. And what are the proper functions of the representative l)ody? The answer depends on what kinds of business a numerous body of nearly seven hundred persons is competent to perform properly. "That alone which it can do well it ought to take personally upon itself." With regard to the rest, its proper course is not to do it, but to take means for having it well done by others. It is thought, for example, to be its duty to vote the taxes. Yet it does not do so, it merely gives its consent or refusal to items of taxation or expenditure proposed by the Chancellor of the Exchequer. The principle here involved affords a clue to the limitations and definitions of the functions of representative assemblies. Being numerous, they are unfit to administer. Xo body of men, unless under the command or direction of one, is fit for action. This is so oven in the case of a business board. But a body is qualified for deliberation and discussion where a conflict of views prevails, as there does so constantly on political questions. A i)opular assembly is unfit to administer, or even to dictate in detail to those who have the charge of administration, be- cause every branch of the public administration or service is skilled business with peculiar principles and traditional rules * Jiepre^rnUUive OovcrnmetUf p. 86. 33* ENGLISH POLITICAL PHILOSOPHY requiring special knowledge, ** which does not come by intui- tion," but experience. If an assembly interferes it is u case of inexperience sitting in judgment on expericnx:e, ignorance on knowledge; so it would be even if no interested or sinister motive were present, but if otherwise there may be the grossest jobbery, worse than the worst corruption wliich could take place in a public office. The business of the assembly is not to decide matters of administration by its own vote, but to *'take care that the persons who have to decide them are the proper persons." But they should never nominate the individuals, because they never regard special qualifications. It is not desirable even that they should nominate the members of a Cabinet ; it only at present virtually decides who shall be Prime Minister, or " wlio shall be the two or three individuals from wliom he shall be chosen " ; the other ministers being chosen by the chief, while every minister appoints fit persons to offices in his department which are not permanent. An assembly should not interfere in udniinistration, though it tends to do so more and more, liut, further, such an assembly, sometimes called legislative, is not even fitted for legislation, becauKo law-making is a highly difficult business, requiring a trained mind and long study. This consideration would limit the work to a select few. Besides, every provision in any law should be made with reference to all the rest, and the whole of any single law should harmonise with the pre- viously existing laws. These conditions cannot be fulfilled when laws are voted clause by clause. In legislation, no Ichm than in administration, the proper work for an assembly is not to attempt to do the work for which they are themselves unfit, but to see that fit pcrsonn are put to do it. What is requireil in a civilised State is a small and select body, a counuissiun of legislators, whose business should be to make the laws under the sanction and wish of the Parliament. This work might be done through the machinery of the Law Ix)nls. There remains, then, as the proper office for a representative I l)o r. 218. 340 ENGLISH POLITICAL PHILOSOPHY He is on much more disputable ground, when, following Bentham, he advocates woman suffrage, but more unhesitatingly and more enthusiastically than Bentham. He differs from him in thinking that the open \& preferable to the secret vote, because the evils against which the ballot was intended as a protection, namely, intimidation of votera, whether of tenants by landlords, of employees by employeiv, or of tradesmen by customers, no longer exists, and it is more likely that the vote will be given in the public interest if it is openly given. He also differs from Bentham and the Chartists aa to the proper duration of Parliaments. The time should be long enough to enable the representative to show his " intellectual, moral, and active qualities," for which a year is not sufficient; on the other hand, it should not be so long as to make him forget his responsibility to his constituents, to take his duties too easily, or make his position a mere means of promoting his own advancement. Perhaps, on the whole, in England, con- sidering that democracy has rapidly become the strongest political power, " less than five years would hardly be sulHcient to prevent timid subserviency." As to exacting from candidates pledges, on the whole, he is against it, though in some cases it may be necessary, t^pecially he is opposed to it in the absence of the representation of minorities or plural voting ; for then the unfettered discretion of a man chosen for his ability, which he thinks would often happen, and should be always aimed at, would afford the '^ only escape from class legislation in its narrowest and popular ignorance in its most dangerous form." Unhappily without his two specifics, he thinks that they will not bo likely to give this necessary free hand to their member — a point with which we have already dealt,^ and on which we have come to more reassuring conclusion elsewhere. Nor will the existence of a Second Chamber be any effective check ; though, otherwise regarded, he is in favour of one resembling our own, but duly reformed by infusion of life peers.* * Supia, i>p. 151, 2G4. *'' For a lull and able discussion of the question of female sufTrage and the representation of iniuoritics, sco Professor Sidgwiek's ElcnieiU* ^ 4'olUia, chap. xx. J. S. MILL • 341 It is not necessary, he thinks, to discuss the question of the most appropriate division of public business, as the division is different in different countries, partly owing to the accidents of history. The important point is that the " classification of functionaries should correspond to that of subjects " ; and that the whole group of means having one main end should be under one f th» utmost importance that they should be absolutely impartial. Once appointed, they should not be removable either by the executive or popular vote. In the latter case justice would be perverted. The judges would give decisions that would be mijst applauded, or were less open to misrepresentation, rather than those that were right and just. As for the professional public servants, the officials who do not change with each change in the government, they should not be liable to be turned out (as in America) excei>t for positive, proved, and serious misconduct ; and they should be appointed at first by couipetitive examination in the usual branches of a liberal education, the most successful receiving the vacant appointments, as in the case of the Indian Civil Service, but all subsequent promotion should be by a mixed system of seniority and selection by the head of the dejmrt- ment according to capacity. A short chapter on Nationality as connected with Repre- sentative Government, another on Federal Kepresentative Government follows, and a longer and more interesting one on the Government of Dependencies by a Free State concludes the work. In none of these is there much that is original, save perhaps in the last in his remarks on the proper govern- ment of India, a subject on which he hud thought much and on which he here speaks wisely and much to the point. § 10 We are not specially concerned with Mill's later works and later crusades; with his strenuous combat with the shadows J. S. MILL 345 in tlic Bhape of Sir William Ilamilton's Philomphy of the ComHtionedy in which, amongst other things, ho defends Berkeley's denial of matter, and tries to refute Hamilton's theory of The Absolute ; nor with his book on the Subjection of }Vnmpn, in which ho would deliver them from various disabilities from which the greater number have no wish to be delivered, so much their state of slavery has made them to love their chains; nor even with his "second thoughts" on sociology, after an interval of twenty years, in his Awjuste Comte and Positivism^ though in it he shows a ratlier clearer conception both of the subject and its appropriate method than is contained in his Logic. It is not necessary to consider it here at length, because in substance he merely repeats what he had said before — that Comte has only laitl the foundation of sociology, leaving it to others to finish the structure; while he further objects to the Positive Philosophy as a whole that it wrongly omits the science of psychology from its list of the sciences — a science from wliich Mill expected very considerable things, both as furnishing mental laws to verify historical generalisations and the means of answering metaphysicians like Hamilton and ^laurel. He also objects to the jwsitive philosophy that it furnishes no test of proof, such as he attempted to give in his Logic. . On the whole, a remarkable man, and a remarkable career : what has been the outcome of it ? He did not bury his talent. What has been the fruit t In addition to admirable exposi- tions, some excellent essays as those on IJentham and Cole- ridge, some smaller treatises of merit, he has given us throe ambitious books, influential in their day, and formerly much read at the Universities, but from which the life has already in large measure departed. What was the cause of his comparative failure! Two things chiefly — one moral, one intellectual, and the former a merit. He was too ardent a believer in progress, moral, political, and social. He looked for more than was possible, and expected it sooner than was possible. He wanted quick results. The other cause was intellectual. He was not original. There was not in him that welling up from within, 346 ENGLISH POLITICAL PHILOSOPHY from the Infinite, of new ideas, new points of view, which is the mark of the superior, the creative minds, like those of Hobbes, Spinoza, Leibnitz, or Kant. He was well aware of his own limitation in this respect, and in words of great modesty and candour refers to it. He says in his Autobiography ^ p. 176 : " I felt that he (Carlyle) was a man of intuition, which I was not ; and that, as such, he not only saw many things long before me, which I could only, when they were i)ointed out to me, hobble after and prove, but that ... he could see many things which were not visible to me even after they wore j)ointed out." Here is the explanation of his comparative failure. He had no original intuitions, and no logical acuteness will make up for the want of them ; no dialectic skill, no fresh analysis of old materials, whether theories or conceptions, no shaking out of the contents of old propositions by deductive logic, no re- combination of them by way of syllogism or ratiocination, will produce what mankind most wants, namely, new truth. A new method of investigation might assist, a new way of approach might surprise truth, just as the cxi)erimentid method served the moderns for the discovery of truth in physics that had eluded the imperfect methods of the Greek philosophers, otherwise so acute. But Mill had neither originality nor yet a new methcnl, for he never clearly or fully apprehemled the scope and range of the histi)rical method, and in consequence he makes but little use of it. He lacked the one thing needful. In political economy he got his principles from Ricardo and Malthus — principles doubtful as in the case of the law of population, or irrelevant tliuation of the historical iiuthod to politics us distinct from law. But, unfortunately, of the written lectunn which ho left, only his admirable ItUroduclioii, to Political Science has been as yet given to the public. '^ 4iicieiU Lauf {\8Q\\ chap. v. pp. 114, 115. MAINE 349 mtiin contents as regards property, contract, crimes, and their punishment, etc., were dictated by the law of nature. • Maine admits that the theory of natural law was of great service to the Romans and through them to modern nations in improving their laws. It presented to the former a good model, without tempting them to disol)ey the actual laws, however imperfect they might appear. But the law was always vaguely and confusedly held j it was differently conceived by different lawyers ; and when it was applied to the reformation of government in France at the end of last century, it produced frightful anarchy and disappointment. The theory of natural law, he thinks, cannot be taken as the science of law. Nor can the *' analytical jurists," Austin in particular, bo said to have given us a science of law. Austin's method is scientific as far as it goes, but it is insufficient. He resolves or analyses every law into a command of the sovereign, which imposes an obligation on some person or persons, to be enforced by a penalty. And he analyses the chief notions, classifies and defines them, thereby securing a clear and consistent ter- minology, and greatly clearing the brain. But he has left open the very essential question, " as to the motives of societies in imix)sing those commands on themselves, as to the connection of those commands with each other, and the nature of their dependence on those which preceded them and which they have superseded." Then observe that none of the jurists take any notice of law at any other time than their own. From all which it follows (at the time he wrote) that there was only hypothesis (in the shape of natural law) or mere analysis and classification to do duty for science. They had all alike started on a wrong road, adopted a wrong method, whether deduction or analysis. Tlie proper method is the historical. We should endeavour to get the origin, the first germs of law as it appeared in the most primitive societies, — then, this clue being obtained, we should try to follow its growth and developments, its changes, whether for better or worse, down to existing times ; to assign, if possible, causes for the changes ; to do the same as regards each of the grand topics of Uw, — property (including wills and succossions), contract, 350 ENGLISH POLITICAL PHILOSOPHY crimes, turU. If this were done as regards the maiu changes, without going into the minute legal history of each country, we should have something like a science of law, at least a scientific history of law from its birth up to the present time, and therefore a true explanation of existuig law. And the same method equally applies to public institutions and powers. In fact, law, in the proper sense, and government begin together. We inquire into the origin of kingship, of aristocracy, of the popular asHcmbly, and the subsequent changes in their general history in each type of society. In the case of private law, Maine thinks it is above all things necessary to get the first forms of jural conceptions, because "these rudimentary ideas contain potentially all the forms in which law has subsequently exhibited itself." ^ An error here, as we shall presently see, us they do not contain all the future evolution, as the germs of a plant or an animal do ; but also an important truth. If tht^y always first appear in the same shape, it is important to get them, and interesting, just as to get the first rude faint entrance of religious feeling is important and interesting. Now, it is natural to suppose that the earliest form of law, supposing there to be only one kind of law, would be found in the earliest and simplest type of society, and this must be critically discovered, and not assumed as it was by Uobbes and Locke. And the earliest form of society, according to Maine, was the i)atriarchal family, which afterwards cx|)andcd here into the tril)e and there into the village community, while a union, whether forced or federated, of tribes, or village communities, fonned a nation.^ The earliest form of law, the germ of later laws, was the patriarchal command, as the earliest form of government was the patriarchal authority. But these are not civil laws, as they apply only to members of the patriarchal group — his wives, children, slaves, and, perhaps, adopted persons. The first appearance of civil laws, laws proper, is in the 7Vtemii. 3. ' Ibid, p. 12b. ' J bid. \>. Iti6. MAINE 351 mentioned in Homer, were Bupposed to bo divinely breathed into the mind of the king by Themis, the god whose special business it was to preside over Law. Like decisions repeated in similar cases l)egat customs, and customs, after letters were discovered, were put into codes, like the Code of ISfanu, the Dcccmviral Code or Law of the Twelve Tables of the Romans. These customs thus generated were afterwards developed and extended to supposed parallel cases, and good usages, as with the Hindoos, begat vicious usages, which, when codified, ac- quired a certain sanctity, which prevented change and improve- ment. Happily this was not the case with the Roman Code, M'hich was drawn up while custcjms were healthy and beneficial. When (mco put into codes, which made them public and cognisable to all who could read, they could not be tampered with, added to or 8ubtra(ited from, as they would have been when they were only known to a privileged class of lawyers. This was a disadvantage, because a society that progresses requires new laws, new customs. Few societies do progress, and in the great majority the people are content with their laws, and only require a good administration of them. The best legal system with such is that which conforms most closely to its first ground-plan, which never changes in fact But States that progress require new and better laws. Moral opinion and social needs are apt to be ahead of the laws, and the laws nre brought up to the level of advancing morals and social want« by legal fictions, by equity, supplementing law on grounds of higher morality, and finally by legislation, the making of new laws by the supreme power of the State. IJy legal fictions the judge really changes the law, changes its scope, while pretending to adhere to the letter. This is exemplified in -English case-law, in which the law is really widened in its range by the new decisions. The same was true to a greater extent of Roman law, which permitted the responses of the jurisconsults in hypothetical cases that might very likely arise to be turned into law. In both cases the existing law was extended and improved, usually in the general interest, and therefore the device was good, but only suitable to early times when there was a difinclination in tlie generality 35a ENGLISH POLITICAL PHILOSOPHY to openly avowed new law. At a later stage in legal history we have equity as the device for openly correcting the law, by departing from it in cases where it seemed to result in injustice owing to the higher moral ideas of the time. As, however, in time, equity itself becomes hard and rigid and requires a new equity^ it is better for the liCgislature to effect redress by new laws. Thus, then, legislation is the third source of improved law, and more and more tends to be the 8ole source of new law. We have here, briefly, Maine's general account of the origin and chief stages in the general history of law, as given in his earliest work, Amctent Law. !Much of it is true and inter- esting, but it requires serious corrections. And, first, though it is probably true that the primitive germ of law is the l)atriarchal command of the father, it is the first form of only one kind of law, namely, legislation. Both are similar in this that they are commands imposing duties, sanctioned by punish- ments. It is not the first form of customs which are the source of most early laws, and of whoso origin a wrong account is here given by Maine, though afterwards largely corrected by him. Secondly, the themistes cannot be a dcveloi)ment of the jMitriarchal commands to the household, because the first are supposed to be divinely dictated, but not so the patriarchal commands. There is, in fact, little real resemblance between them, the former being more akin to judicial decLsi(»ns, which contain indeed an implicit command or law for the future in like cases. But the great mistake is in his account of the origin of custom — the most imi>ortant question of all. Repetition of themisteSf in similar recurring cases, he thinks, begets custom, and in simple societies similar circumstances would proilucc similar cases of disputes or injuries and hence similar decisions, which is anything but an explanation of the origin of custom. What, then, is the origin of custom ? Customs do 7iot originate with rulers. They were not the commands of the sovereign. They originate with the many, the common people. In general, MAINE 353 tlicir origin was convenience, utility, just as the liabits of animals are in part to be so explained ; sometimes they resulted from absolute necessity, sometimes by a rude primitive sense of justice ; very many came from religious superstition, many more by the extension of sound customs to supposed parallel cases, by the priestly or lawyer class, after such classes arose much later. Some also, no doubt, in later times, owed their origin to great individual lawgivers, but these rather showed their genius in giving better shape to already prevalent customs, in selecting the best of them, and setting on them the stamp of their approval, and embodying them in consecrated codes. Many of the customs and ceremonies of savage tribes are wholly inexplicable, and seem to us unreasonable and absurd, though in their origin they had a meaning, and were reasonable to the minds of simple primitive men, which rather resembled the minds of grown children. ^lere chance, too, as Professor Holland says, originated customs " in the mode in which a path is formed across a common. One man crpsses the common in the direction which is suggested either by the purpose he has in view, or by mere accident. If others follow in the same track, which they are likely to do after it has once been trodden, a path is made."^ Maine considers that the earliest forms of jural conceptions, if they can be found, will be of inestimable value, because they contain implicitly within them " every form of moral restraint which controls our actions and shapes our conduct at the present moment." He thinks that all subsequent law is latent in these germs, as the future plant and flowers are contained in the seed, or the oak in the acorn. This is far from being true. All future laws are not developments of the primitive jural germs, even if we had the germs before us without doubt. Whether the primitive germs be the patriarchal commands, or the themistes of Homer, customs are not developed from them, and custom is a form of restraint earlier than the latter, as early as the former. Even if custom be the primitive germ of law, there is much law derived neither from custom, nor tJiemisteSf nor patriarchal command. Religion is a distinct ^ Holland's Jurisprudence, chap. ▼. «3 • I 354 ENGLISH POLITICAL PHILOSOPHY source of law, I do not mean superstitious customs having origin with the people, but, e.g,t much of Mohammedan law and institutions is contained in the Koran, partly founded on older Arab custom, but also on imi)ortaut innovations and direct precepts of the Prophet Mohammed, originating in his own political genius. Some of it is contained in interpretations of Mohammedan doctors (the Ulemas) of the same nature as the English case-law and the Roman Heaprrma Prudentium^ becaui^ new social exigencies have demanded additional law that could only be got in this way, the Koran being by a legal fiction the sole and sufficient source of all. The like is true of the Cude of Manu. Old customs form the core of it. But whether one or many made the code, new precepts and laws were in- serted and became consecrated in it; and the Brahminical lawyers have since added to it, under colour of. interpreting it.* In the same way Christianity, especially through the influence of the canon lawyers, is the origin of those important parts of law in all European systems which relate to marriage and divorce, the legal position of unmarried women, wives, and widows, as regards property. Even philosophical and moral theories, such as Stoicism, through the theory of natural law which flowed from it, and during the past sixty years lien- thamism, have been new and separate sources of law. Much of all this is indeed elsewhere laid down by Maine himself, which makes it all the more diflicult to believe that there is only one root for law, or that the early jural germs contain in them potentially all later law. Let us now take up the two main topics of law — property and contract — to see how he deals with them by the historical I "The 'roots' (of law) enumerated in the Institutes of Manu are four : Revelation, or the uttered thoughts of inspired seers ; the institutes of revered sages handed down by word of mouth from generation to generation ; the approved and immemorial usages of the ]>eople ; and that which satisfies our sense of equity, and is acceptable to reason." — Holland's JurLiprutlenee, chap. v. This, though old, is nearly as full and true an account as Maine's of the sources of law. MAINE 355 method j for here, if anywhere, light might be expected to bo thrown by it. We might through its researches hope to learn more of the real nature of these two essential elements of our existing society, to find their beginnings, to discover their main changes, and finally to gather their tendency as respects the future. lie follows his usual plan : tries to ascertain the first form of pro])erty, of contracts, of testaments, then tries to trace the subsequent changes and their causes. But as the earliest form of property, like the earliest form of law itself, depends on the earliest form of social aggregation or of independent self- contained groups, a preliminary question arises : What was the earliest form of society itself? and then, What were the subse- quent social series? because law depends on the social type or organisation, comes from it, and changes with it, whether primitive, Jewish, Roman, feudal, or modern. The fact is, on this question Maine gives two quite different and wholly inconsistent accounts. The patriarchal family as described in the Book of Genesis is his first conception of the primitive social organism ; later on, it is the Roman family under the patria potestds^ which he thinks was originally universal, but which had decayed except in the Roman world. The patriarchal group is identified with the Roman family, is the first political society, and the command of the patriarch the first form of law. By this assimilation of the patriarchal family to the Roman family under the patria poiestas he is enabled to make use of certain chapters of Roman law, in particular the history of the successive reductions in the poiestas over both the person and acquisitions of the children of the paterfamilias made during several hundred years down to the time of Justinian ; but his proof of its identity with the patri- archal family, as described in Genesis, is very defective, while that of the former universality of the patria potestas is still . more so.* But again, Maine vacillates between this conception of early * In fact, his argtiment amoonts to this : We cannot directly prove its universality, but we can prove the qnirersality of something else, which •1 356 ENGLISH POLITICAL PHILOSOPHY society as made up of family groups on the Roman model, and a quite diiferent view in which the social unit is rather the trihe or clan ruled by customs, but directed by a chief ; a group, at first communistic as to property, in which of course the patria potestas could have no significance as to property, because in fact until much later there was none. The views are far from clear, and the two are certainly inconsistent, one being taken from the Roman law and the other from quite ditlerent sources. Add that in the village community, ruled by a council of elders or headmen, we have another social group or organism diiferent from the clan, like the Highland or Irish. In chapter viii., treating of the origin of property, he gives us the social types which, on his own showing, must represent earlier stages of social aggregation. For property was originally held in common by the tribe, it gradually became individual, was divided amongst the separate households, that is, families, which must accordingly have been, not the earliest but later social type. Which was really first, the tribe or horde of kinsmen, or the single family, the pair with children, is a difficult question, because every aggregation of kinsmen can be traced logically to a single pair. But let us postulate as a fact what is probably true, that there was at one time gener- ally tribes with property in common ; and we know that private property in both land and gooils was reached : the question is, In what way 1 What were the ciiuses and what the stages of the process 1 And we have now to see how Maine deals with this question. §* However the tribe came into being,^ the property belonged to it collectively, especially the land, and private property came was a product of it, "a mould" left by it, namely, agnatic relationship. But it does not follow that where we find the latter the former must have preceded it, as is well shown in M'Lennan's Patriarchal Family ; and it appears there was an earlier stage where relationship was only recognised through the mother. * It would appear to be an expansion of the family, the single {>air ; •ee Ancient law, chap. v. p. 128. MAINE 357 from " tlic gradual disentanglement of the separate rights of individuals from the hlended rights of a community." This is sufficiently abstract ; and he proceeds to give four examples of the stages of transition — the Highland clan, and the Slav, the Hindoo, and the Russian village community. In the Early History of Institutions he gives a fuller and better account of the origin of landed property. In reality he gives two origins : one the same as that just stated but more clear, the second a new one, namely, ownership by the Chief, because the Chief from the first had a separate portion of land assigned to him, as well as,, we may presume, the choicest things of other kinds — the best horses, later on the finest swords and armour, the choicest raiment and woven fabrics, etc. Here was one beginning of private property in land, and this precedent was copied in subordinate cases ; some land being assigned as the " appanage of office." The rest remained the common property of the tribe, or in other cases of the village community. The land itself was the natural "solvent of this natural communism." It was divided into equal portions, and the iwsscssion assigned to separate households ; the portions were changed by rotation to secure greater equality, or it was periodically rcdividcd. But each one had the produce of his own labour for the year, or until the next redivision. But by degrees, Maine tells us, " as the common ancestry fades away from indistinctness, and the community gets to consider itself less an assembly of blood relations than a body of co-villagers, each household clings with increasing tenacity to the allotment which it has once obtained, and redivisions of the land among the whole . community, whether at fixed periods or at death, become rarer and rarer, and at last cease altogether, or survive only as a tradition."* And thus we come to private property in the cultivated tribe-land which was originally held in common. But the heath and waste still remained common. The process of transition, he thinks, must have been slow, because in some places the old system still exists. It waa due to, or in some cases hastened by, pressure of population. ' Early History of In^tittUims, p. 189. 358 ENGLISH POLITICAL PHILOSOPHY There are several stages in the transition from the primitive communal to private ownership, and all these successive stages can be still seen simultaneously existing, because the social world is full of " survivals," owing to the obstinate conservatism of custom, esi>ecially in rural and agricultural communities. Thus we have still the house communities of the Southern Slavs oh the frontiers of Austro-Hungary, in Serviu, in Bosnia and Herzegovina; the Hindoo joint family and the Russian village community, each of which groups holds property less and less of a communal character ; till finally in the Hindoo village community there is now scarce any traces of the original collective property. The increase of population in India led to the introduction of outsiders, which was not the case in the Russian village, which still preserves in the Mir much of its original features. Still the tendency in all cases is, even in the house communities, as de Laveleye tells us, to individual instead of collective property. The attraction of the large towns for the more energetic and individualistic members tends to break up the house communities. In early times the tribal land was inalienable; nothing short of conquest could transfer it to others. Even then the land was not usually taken from the tillers, but only a tribute or rent was exacted by the conquerors, and servile communities were not unknown. The same was true of the portion of the sub-tribe or sept. The land could not be alienated, except in cases of " extreme necessity," and even then the consent of all was necessary. Kvcn when landed proj^erty became all but private property, it was ditlicult to alienate it.^ And the history of property, according to Maine, consists largely of successful attempts made to overcome the ditliculties placed in the way of easy transfer. One device was to classify property into higher and lower kinds (like the Roman Res Mancipi, Res Nee Mancipi, English real and personal property) ; and to allow the latter to be con- veyed with less legal formality ; then the advantages of the simpler conveyance becoming apparent by degrees, the sim- * Of this the Jewish institution of Jubilee, by which in the fiftieth year land levorted to its fornur owner or his family, in an example. MAINE 359 plicity is communicated to the higher kind. ThuR the tendency in England is to assimilate the conveyance of land to the more easy and simple transfer of personal property. A second device was to distinguish property into classes according to its source, and to permit greater freedom of alienation of one than the other. Thus within the ancient Hindoo family the father could alienate what he had specially acquired, hut not the remainder of the family property ; in Roman law the son's private acquisitions (e.g. the soldiers' hooty) might be disposed of as he pleased, inter vivos or by will, but what was made through the father's capital belonged to the father. Another most important device by which property might become separated from its original owner, whether individual or tribe, was '* usucapio," the prescription of the moderns, a device of the Romans, but copied, after much opposition from the canon lawyers, into all legal systems; the essence of which is that possession undisturbed for a certain length of time, varying with the kind of property, purifies and confirms the title of the possessor as against the original owner, provided ]m i^ssession began bond fide^ and his title was acquired in some one of the legally recognised modes. Thus possession of land for two years and of moveables for one year transferred ownership from the original owner to the possessor. But as it appeared to Justinian that owners were too easily deprived of their property under these short periods of prescription, he changed the time to ten and three years respectively. Pre- scription was specially useful to the Romans, who often held property under defective titles, owing to some slight omission in the ceremonies necessary to convey land, slaves, or cattle. To the moderns it is also of great utility as putting an end after the prescribed time to disputes, especially after civil wars and revolutions, and to the " composing of men's estates," as it is expressed in the Act of James i., which first recognises pre- scription in the fonn of " a true statute of limitations of a very imperfect kind." * Maine adds that the Courts, especially the Equity Courts, have greatly influenced the history of property, partly by * Ancient Law, p. 285. 36o ENGLISH POLITICAL PHILOSOPHY creating new kinds of property, but chiefly by the insinuated influence of the framers of equity Bystcms into the minds of the judges. And then he concludes his imperfect history of property by giving a brief account of the origin of feudal ownership, which he thinks was modelled on the Roman Emphyteusis, especially one species of it, exemplified in the military tenures of land along the frontier, in which case there was a double ownership, and land was held in return for military service, which were the two essential features of feudalism. lie again takes up the subject in the JCarly History of In- stitutionSt and ho there shows more clearly how land passed slowly but surely from tribal property to household or family property. It passed through the changes earlier in England than elsewhere, and more completely, as the English village community, the Mark, was dissolved and transformed into the Manor much earlier. The waste lands and the common lands mostly became enclosed by the great landowners. England, he thinks, is committed to the principle of private ownership in land, in spite of recent atUiuks on it (which he considers equally applicable to other forms of property). It is the most fruitful in results. Nothing but the principle of private property could have produced the marvellous cultivation of a whole continent, like that of North America, within such a short time ; '' from end to end and from sea to sea," as he afterwards repeats.^ It is rather the history of landed property that Maine has been dealing with, though the history of ptMsonalty is also slightly and incidentally treated. But even where private property in both laud and gooils had been recognised, the rights of proi)erty were formerly more restricted than now. Property was ratlier family property ; the father held it for the family, and could not give or Ix'queath it outside of the family. Ilis grown-up sons had partly created it, and they, as well as the law, protected it, and it was not * Pop. Oovt. TliiH U also Bentham'a great ill lut ration, supra, ]». 223. MAINE 361 imagined the father eould alienate it from them. What was solely due to the father's own exertions ho might apportion at his pleasure amongst his children, as the patriarch Jacob gave out of his own acquisitions to Joseph a larger portion than to his brethren.^ But the idea would not occur to the father of disinheriting or passing over his children for more distant kindred, still less strangers, though in early Roman times this general view apparently was not taken. The patria potestas was unlimited at first over both the person and the acquisitions of children. All that resulted from their labours was regarded as the father's property, and apparently the fatlier could will this away from the family if he chose. The words of the Twelve Tables are explicit: "Uti legassit super pecunia lute- lave stiaB rei, ita jus esto." This remarkable freedom of bequest, so much out of keeping with the usual ideas of the time, has puzzled many. Maine's explanation is, that the testamentary power was valued because it enabled a man to provide for his emancipated and hence best beloved children, who would bo legally excluded if he could not make a will in their favour ; not that ho would dream of disinheriting his other children. Legislators did not contemplate his doing such a thing, and hence did not make laws to prevent it. They gave liim power in the only case they thought he would be likely to desire to use it This is a good explanation, but hardly a sufficient one, as it does not agree well with subsequent laws made to prevent the heir or heirs from being left destitute. It would rather appear that as the patria potedas was so very extensive roperty belonged to the family as a whole, whatever diilurenccs the father might nuiku in a • testament in favouring one rather than the others. But a ditferentiation in the mass of property came when the son was allowed to have a separate proiKjrty during Iuh life- time in liiH own acquisitions, over which the father had no control after death. The idea, in fact, came back under the inHuence of natural law, that all the children had natural claims and expectations on the father's property, and that what the son, being a soldier, or an ollicial, accjuired by his own exertions, should belong to himself. So that the children got relief in two wayH from the law, both during the father's life as respects certain acquisitions or peculia^ and after his decease by restricti(mH on the testamentary iK>wcr. The unnatural freedom of bequest and the unnatural range of the jHitria jxjteslas were both greatly contracted, and the improved law has descended to the modern systems of Western Europe, England excepted. In the ease of intestate succession, in like manner, the rule that prevailed at Rome of equal shares to the children has descended to the moderns, except as regards landed property in England, which is subject to the rule of primogeniture. MAINE 363 According to Elaine, the freedom of bequest that exists in England was originally due to the influence of primogeni- ture. It is in no way connected with the early freedom of bequest of Roman law. But though an "accidental fruit of feudalism" and primogeniture, freedom of bequest is totally diflferent in spirit from "a system like the feudal land law under which property descends compulsorily in prescribed lines of devolution " j and, on the whole, he thinks it has worked well in this country as compared with the system in France,* §6 Next to property, perhaps more than property, contract is the great legal category on which society and social life depends ; and Elaine gives us a very interesting but incomplete history of contracts, their origin, their kinds, and the general changes in their legal formalities. His account is taken largely from the Roman law, where the materials for a long history of contracts was already nt hand. In the earliest times, and in the simplest social groups, there is small space for contracts or contract law, whether we consider the patriarchal group, wandering and non-agricultural, or, later, the clan or tribe, or even the village community ; in none of these cases is there much room for contracts between individuals inside the group, while individuals of different tribes or clans could make no contracts that would bind without the consent of the cliief ; or in cases of the village community, without the consent of all the villagers or the headmen. Only the chiefs or heads could make contracts or covenants, which were more- of the nature of treaties, accompanied with ceremonies and solemnities. For another reason, Maine informs us, the sphere of contracts in all early law was limited. The special virtue on which the fulfilment of contracts depends — namely, good faith, fidelity to agreements— is a slow and later growth, as respects all persons outside the tribe, who were naturally looked upon with suspicion, and as probable enemies the nearer they were. To their tribal kindred they would bo * AnckfU LaWf pp. 225, 226. 364 ENGLISH POLITICAL PHILOSOPHY true and faithful, but to outsiders only if it appeared profit- able, and breach of faith was very common. Perfidy, the skilful evasion of engagements, was even regarded rather as a virtue, for which a hero like Ulysses was praised, so that, to induce men to fulfil their covenants, oaths had to be added to the other ceremonies accompanying their making, the wrath of their special deities being invoked in case of breach. But when society passed on to a more individualistic stage, as the cohesion of the primitive groups gave way, as individuals, heads of families, were allowed to have property, real and personal, and afterwards their children, tliere grew more and more room, and more and more need, for contracts and their legal enforcement as between individuals of full age and not under the ix)wer of another. Accordingly we find in ancient law that promises and contracts in certain cases were enforced, provided the due ceremonies, the prescribed forms of words and gestures, were completely observed, the requisite witnesses present. Gradually the ceremonies were reduced, the witnesses dispensed with, the form of words relaxed or dispensed with altogether in certain important cases ; the law in this final stage only inquiring if the promise was made, or the mutual agreement come to, without regarding any form of words or ceremony. All this is best illustrated, according to Elaine, from Roman law. The earliest Roman contract was the Nexum^ where a contract and a conveyance are confused together, a simplified form of which was the verbal contract or stipulation (in which question and answer corresponded). A promise had to be made in a set form of words. All kinds of engagements could be made in this way, but they were not legally binding unless made in the proper form of words, though considerable latitude was allowed in the course of time as to contracts between individuals of full age and not under the power of another. Then we come to a remarkable class of contracts, called real contracts, because on the bailment of a real thing, by this mere fact, without any formal promise or any ceremony, the law presumed an engagement and pressed on one party an obligation. These contracts were of a very peculiar kind, and MAINE 365 must have arisen in every society that had reached private property. There were four of this class — pigmis or pledge, mutuumy depoHitum^ and commodatum. Of these the first, which is an extremely old device for raising money, still exists, and has grown ever more and more important. The history of pledge in Roman law is interesting, hut Maine does not give it. Pledge arises, in Roman law, where an individual for the loan of money or something urgently needed deposits some other property with another, in which case the law casts the obligation on the other to restore the property on the repay- ment of the loan together with interest. This was the origin of mortgage aiid of all other forms of pledge that exist in our time. At first in Roman law the property was conveyed with all the mass of customary ceremony, but with a right to recon- veyance if the money advanced were repaid on a day named (fiducia) ; but as it might be sold meantime or pass into the hands of third parties to the loss of the borrower, the Prsetor came to his rescue, and in his Edict laid down that the property should be restored on the debtor offering to pay the amount advanced. A further improvement in the law of mortgage took place when the property pledged was allowed to remain in I)osscssion of the owner in certain cases where such an arrange- ment was beneficial to both parties, as in the case of land pledged by its owner, or the cattle and implements of its cul- tivation by a farmer as security for the rent. In the case of pledge there was a contract on both sides ; in the other three cases the contract is unilateral. The second contract has a peculiar interest, as Savigny, the great authority on Roman law, considers it the earliest contract of all. This is mutuum^ where a friend lent to another a certain quantity of wheat, oil, wine, money, etc., in general things admitting? of number, weight, or measure, in which case the law placed an obligation on the receiver to restore the same quantity and of as good quality. It was really a gratuitous loan, a friendly act, not an economic transaction for profit ; and here, according to Savigny, law first felt called on to protect property, lest an owner's kindness and confidence, or perhaps humanity, should be abused to his hurt and be 366 ENGLISH POLITICAL PHILOSOPHY made the means of robbing him by the party benefited, and so of discouraging a useful aid to men in necessity, eHpecially in early times. It was the earliest contract, because it was more urgent to protect proi)erty than to enforce promises, which it did not undertake till later. This is not Maine's view, who thinks that the verbal promise or stiimlation was earlier than any of the real ones, for which, however, he does not appear to give satisfactory reasons. The next real contract was depositum^ wher« an owner deiwsits a thing for safe keeping with another but without jxiyment, in which case the law vests in the depositary the obligation of restoring the thing or its value, and required ordinary, but not the highest, degree of care on his part. The last is commoiiatum^ where a person borrows for his own use and convenience, in which case the highest care is exacted by law, with the restoration of the identical thing in due time, as agreed upon. None of these contracts could take place in the patriarchal stage, or the trilml and communistic or semi-communistic stage, as they all imply private property. If a pledge were given •for a loan of money or cattle by one chief to another, then it would depend entirely on the good faith of the mortgagee whether he restored on redemption, there being no law to enforce it It would not be a legal contract where there was no law, but only one binding in honour or morality ; but, as Hobbes says, covenants where there is no sword to keep all in awe are mere breath, and the person in necessity, the mortgagor, would sulfer, save where he could protect hunself as the baron under the feudal system when he got money on pledge from the Jewish lender. Instead of pledge, under the earliest system a chief in need of money or other special commodity would endeavour to get it by an exchange of some other things. He would not part with any of his property without getting the most i)ossible in return for it, and there would bo little room for pledge. Muiuum and commodatum might have place, though rarely, as between friendly or federated chiefs, but not in the case of their followers or dependants until they had private property, MAINE 367 wlien iliey might arise within each tribe with respect to articles of such property. The fourth class of Roman contracts, called consensual contracts, is also remarkable. These contracts, like some of our own modern ones, were made by mere mutual agreement, without any special form of words, or without any deposit of things. There were four, the first three of which might be guessed n priori^ — buying and soiling, letting and hiring, jMirtnership, and mandate ; the last somewhat analogous to, but not the same as, modern agency. These contracts were early freed from the usual cumbrous ceremonies in order not to inii)edo transactions of daily need and convenience, or clog the wheels of trade and business, — in short, to facilitate the economic and social life generally; and the Roman lawyers, finding these contracts by mere agreement everywhere in use, called them contracts ^Mrw gentium. All the contracts of which we have spoken were legally enforceable, but a mere promise not put into due form did not bind, was not enforceable, nor a mere promise or agreement to f/tve, until Justinian made such promises binding (probably, as Hunter suggests, to favour religious gifts by preventing the promiser from going back on his word). Thus then, finally, the Romans had arrived at contract law substantially the same as that in modern legal systems, and these in like manner have been slowly evolved from the time when contracts were few and ceremonial to the present time when they are numerous and made by mere agreement, the exceptions being in the case of important transactions in English law, such as contracts under seal or certain contracts under the Statute of Frauds. The result of the whole evolution of contract Maine expresses by the formula that progressive societies " pass from status to contract," or from that condition in which each one's position is settled legally and socially at his birth, to that in which each one forms it for himself by contractual relations freely entered into. And, in fact, the whole of our modern life and its expectations, all social and economic intercourse, all that we call freedom, depends on the power to make contracts, 368 ENGLISH POLITICAL PHILOSOPHY and on their enforcement, if necessary, by law, or the award in certain cases of compensation equivalent to the loss sustained by non-fulfilment. There are, however, some exceptions in the interests of justice or the general weal. Some contracts (as in Roman law) are invalid, as contrary to law or morality, some as contrary to public policy ; those made under fraud or mistake, because in those two cases, under a knowledge of the real facts, the contract would not have been made; or under force, or threats, or "undue influence," because the contract does not express the real will of the person coerced. The rule is that men should be compelled to. fulfil those of their engagements that are marked off as legally binding, to prevent disappoint- ment and pain, to promote the general good, and to realise the general sense of justice. The large area of contract is the most cliaracteristic fact of modern society and of its complex and multiplied relations, of our enlarged and expanded life, and expanded freedom, the consequence of the enlargement of contract. At first, contract played little or no part, there being no room for it under the primitive system of the patriarchal family, or the tribe, or village community, the expansion of the family : now it is otherwise. Contract is all in all. But our modern Communists and Collectivists would restore, and restore at a bound ap- parently, the old system, as far as possible, by the abolition of private property and inequality, and of free contract, which, if permitted, would soon restore the inequality. By the " national- isation of land, capital, and the means of exchange," ^ by the pro- hibition of free contract and a new organisation of labour, it can 1)6 all done easily. It will, however, be a more difficult matter than they think, to reverse a system the result of an irresistible evolution, as irresistible as the laws of growth in a living Inwly ; a system which was slowly but surely reached in all the ancient civilisations that have perished, — the Assyrian, the Egyptian,' * As reootnmendod at tho Trado Union Congress at Norwich, 1894. * Assyriologists and Egyptolojjidts have deciphered inscriptions prov- ing the existence of a develoi»ed law of pro^ierty and contract uniungst the Assyrians and Egyptians, just as the Old Testament shows the lauae with the Jewish i>cople. MAINE 369 the Greek, no less than the Roman ; which has again been slowly reached by the independent and separate development" of every State in Europe, all of which have passed through the same sUvgcs to the same final result. IJut what has everywhere and always been reached under every civilisation shows an irresistible law of evolution or growth, a law of social progress, one of the great laws that Mill was in quest of. It has been largely assisted, no doubt, by. another law, the law of natural selection, and the struggle for existence, and by the psychological law, that man is fundamentally an animal desirous of property, as an extension of his power and an expansion of himself, — is, in fact, the egoistic being which ho always was. To reverse all this would, we believe, be wholly impossible ; biit the attempt, no doubt, might be made; it would lead to the temporary dis- solution of society, if successful. ]5ut society would bo restored, would rise Phoenix-like from its ashes, because the human units being ilnchanged, after a painful and costly experience they would fall back on their prior experience ; and the institutions of property and contract temjwrarily eclipsed, under which they have on the whole so wonderfully prospered, would be restored, an all of which matters are touched at in hit Early History of InBtitutions. His account of the origin of kings and aristocracies is interesting but imperfect. The chief of a tribe, made up ultimately of patriarchal families, is the earliest king. He has all the natural attributes ; he is captain in war, supreme judge in peace, sometimes high priestj though in time, if his dominion increase, he may depute the two latter functions to others. Such were the patriarchal chiefs of the Bible, the Arab sheik, the chief of a large Celtic clan. After the downfall of the grand fabric of the Roman empire and a long period of confusions, invasions, an«l conquests, of migrations of peoples and tribes, the feudal system slowly arose out of the chaos, and finally established itself over the greater part of Europe. Accorduig to Maine, the chief result of the " feudalisation of Europe" was "the conversion of the mark (or German village community) into the manor," and the transmutation of the patriarchal chief into the feudal lord; the king, whether of England, France, or elsewhere, being only a larger lord, primus inter pares ; especially was this the case in France. There was a natural tendency to feudalism all over Euro^K', though the "germs of feudalism" mu.st, he thinkH, have lain in the old Aryan customs, awaiting their favourable opportunity and conjuncture of circuniHtances to grow and ripen. Even in Ireland, where the feudal system, strictly speaking, did not exist, some of the chief features of feudalism were produced. In strictness, feudalism consisted in the tenure of land on conditions of military service and the IKiyment of certain dues. But in Ireland laud was plentiful, while in early times the instruments of cultivation were scarce, and thus it was for the use of the chiefs cattle that services and dues were rendered ; but the same ell'ect was produced by this means as elsewhere by commendation, which was the essence of feudalism. The feudal chief was essentially the patriarchal chief " who had passed through the crucible of feudalism.*' Elsewhere, he MAINE 373 says tlmt the feudal group (the fief) was not a true archaic group, since its inoin})ers were not kinsmen, but for the most part strangers recruited by infeudation and contract. The latter is tnie ; but if so, it is not easy to see how the feudal lord was essentinlly the patriarchal chief revived. The essence of feudalism Iny in its relation to the land ; it was landholding for niilit Soe his interesting Life ff RouBHau^ vol. H. p. 231. 38o ENGLISH POLITICAL PHILOSOPHY feelings of justice and natural right appear earlier than the knowledge of the general utility of justice ; or we can know that a rule is just before we can be sure that it is generally useful, still more, that it makes for the happiness of the greatest number. It may be discovered subsequently, that what instinct and reason point out as just and what reason confirms, is also that which most promotes general happiness or well-being, as in tlie case of ownership ; but it is an after- discovery, and one which may not even be made, though doubt- less it often is made. A community of the lower animals instinctively recognise natural rights, though they were not led to their rules of distribution by perceptions of the general utility. True, their habits and acts do tend to the general utility, or rather to the conservation and well-being of the aggregate group, the weal of the social organism. Shall we, then, say that the rules of justice are those that most favour the weal of the social organism 1 But such rules were known and carried out in primitive communities of men before they were known to be for the general good of the community. They may tend always to the general good, but this perceived tendency was not the origin. The origin, the first i>erception of the idea of justice, is given by the moral sense or sense of justice. It is instinctive; we are born with a predisposition to it, the result of heredity. It appears early in children, who in play with each other show their sense of it ; and of the innate feeling of " mine " and "thine," which appears much earlier. Certain phrases mark the early appearance of the notion of natural rights, and of the law of equality of rights in certain cases. " I have as good a right to it as you have," " as good a right to be here as you," and 80 on. Again, immediate anger at wrong or injury done to them shows the instinctive sense of justice and injustice. They feel that certain acts are just and "fair"; the contrary ones wrong and unfair. The instinctive notion of property which appears in the child is seen in developed form in the school- boy. The bird's nest that he first discovers is " his," and so are the young, and both by the right of the first " occupant" If he finds on article he feels that it is not his unless no MAINE 381 owner can bo found. If he makes a ball or a kite out of his own materials he feels that it is his, and other boys feel the same. He knows or feels that another has "no right" to strike him without jiro vocation, that if the other does so ho may retaliate ; that another should not tell lies about him, to the hurt of his good name ; should not prevent him from doing what anyone else may do, and which is not forbidden by the headmaster. He feels that if he makes a good bargain in liis small world of exchange, it should be carried out ; or if he makes any kind of simple contract, promises to give or do something in return for something to be given or done, that both sides should keep their promises. He feels nevertheless that he should not be held to a bargain made under deception, or to a promise extorted under force from a bigger boy, if another bigger one or the master releaf^ed him on the matter coming to their knowledge. In general, schoolboys know that l)r6mises ought to be kept, though there may be no means of enforcement except the general opinion of the school, which might show itself disagreeably against unfair things, just as it might set itself against sneaking or mean actions, or generally against "bad form," though the latter would not be so in- stinctively known. I do not mean to assert that an inchoate system of rules based on our natural sense of justice is presented by the embryo social organism which a public scbool presents, but undoubtedly the elements of an instinctive code of rules are to be discerned resting on the sense of justice rather than on utility or the general good. In this case tlio headmaster corresponds to the absolute monarch, and his commands are laws in Austin's and Ilentham's sense of the word, that is, general rules over and above the rules of morality and the rules which boys impose on each other's conduct — rules resting on utility, or intended to raise the external character or its internal tone. His aim might be in part the happiness of the boys in the school at the time, but also it might be to make the school, as a per- petual institution^ more efficient, to make the pupils better scholars, but also to elevate their character, to form their manners and their morals up io a higher standard, to make 1 ' 38a ENGLISH POLITICAL PHILOSOPHY them at the same time maiily and religious. But all the time the boy's own sense of justice and right, founded on instinct, is the source of the code that prevails amongst the boys themselves, though it may be supplemented by certain tradi- tions of the school. Thus the theory of the law of nature and natural rights is not fog or "fustian," as Austin, imi)erfectly acquainted with the history of moral speculation, imagined. It is sound doctrine, older than his theory of utilitarianism, and more applicable to practice; and if jurisprudence must make choice between the two for its ethical base, the former furnishes a better one. It is easier to find the just than what is conducive to the happiness of the greatest numl)er (or even the weul of tlic social organism). The former, what is just, is derived from our feeling or sense or perception of justice. ^lost people have some sense, some perception, of natural justice ; to the learned and acute it belongs to elaborate special rules to make the science of justice or right clearer, or to decide what is just in particular cases. Our equity judges have done this up to the moral level of their own age. When higher and more delicate perceptions of justice arise in the minds of original moralists, equity judges should be apt to apply this increasing moral light. In short, the rules of justice rest fundamentally on natural justice and natural rights, supplemented by considerations of utility. Herbert Spencer is the first of our Knglish philo- sophers who has seen this, and iK)inted out the error of l>en- tham and Austin, who make legal rights the creation of the sovereign, which they cannot be unless the sovereign can make something out of nothing. Legal rights, if they are what they ought to be, are simply the expression of these natural rights decernible by the sense of justice, and armed with a sanction. These rights would exist if there was no sovereign, as Locke and Ilobbes both tried to show; only that they would exist in a precarious state, unless people were moral, had a strong sense of justice, were not certain to be carried away by their passions to violate them, and to do injustices when judges in their own cause. The attempt to follow natural law may in the long-run MAINE 383 realise the greatest happiness, as Maine says it did in the Roman world ; but also it might produce temporary widespread misery and anarchy, as it did in France at the Revolution. And if natural law alone be regarded; if the teaching of history, including the history of law and institutions, be dis- regarded ; if the principles of natural law are not checked by considerations of general utility as a chief part of natural law ; if the reforms suggested by it are not carried out slowly, but attcmi)ted at once and altogether ; finally, if no regard be had to prescription, anarchy would be the logical and practical outcome of the doctrine. It must be held subject to the lessons of history, which shows what has always and every- where been held as just, and which, as giving the long experience of our species, must now be considered as necessary ; liistory, which shows us again the universality of prescription, which gives rights to possessors after a certain time, and deprives original owners of them, the most important class of cases in which abstract justice and natural rights have to give way before the exigencies of utility. Why is prescription allowed to found a valid title to property? Because of its paramount utility in composing, in putting an end to disputes, without which it might almost be affirmed that Hobbes' state of universal war would return. To avoiil anarchy, the doctrine of natural law must then give way to utility in certain cases, and in fact with the Romans many of the precepts of natural law were founded simply on utility or general convenience, just as many customs and civil laws wore founded on utility ; a just law in these cases being that which was obviously and generally useful, where abstract justice could not be appealed to. And prescription comes under this head. Its utility is great, and it was early made I>art of the civil law by the Romans, and copied into modern systems from them. But though natural law must bond in cases of conflict to utility, the total denial or ignoring of natural law and enthron- ing Benlhamism, and making the greatest happiness of the greatest number the solo test of good legislation, will be just as likely to load to anarchy if carried out unflinchingly, and 384 ENGLISH POLITICAL PHILOSOPHY in all directions, as Beutliam desired it should be. I grant that it would not do so if the sovereign people, the greatest number, really knew their own interest. But suppose they think that their greatest happiness would be best consulted by an equal division of wealth — a view that Bentham does not hold — but which men uninstructed in political science or political economy are very likely to hold. Suppose they believe tliat inequality in wealth is not the state in whicli the general happiness is best promoted, and should set them- selves to abolish inequality, anarchy and misery would very speedily result, though the majority miglit not believe it would be so until a painful experience had taught them the lesson. But the doctrine of natural law justifies private property as founded on natural rights, while the historical and the comparative method merely show it as a universal fact. According to Burke, natural law oven justifies prescription. This is a doubtful point, and it was denied by the canon lawyers. Accordingly it would seem best to rest its claim on utility, which we have shown to be a supplement and sometimes a check on the conclusions reached by natural law as well as a determinant of part of its contents. In the eighteenth century, indeed, the appeal to natural rights produced temporary chaos in France and elsewhere ; but it also resulted in widening the reign of justice, and in the end in a great increase of the general happiness and wealth, while it restored the dignity of man lirst proclaimed by it, which was reafhrmed by Christianity, but which had l)een gradually lost. It resulted also in the restoration of certain natural rights to the people of other countries, as well as France — both political and civil rights. This happened in Kngland, too, and was the more likely to happen in a country in which the jjeople had risen against their king a hundred years before for their civil and religious rights. It may now - be said that they have nearly ct)n4Uored their natural rights in full, or if not, that they are in a position of great strength for prosecuting any further just claims. But the doctrine of natural law can now be turned against MAINE 385 the working classes if they should go further and attempt to carry out levelling or confiscatory ideas. For property is justified hy natural law, depending as it does on principles of human nature, and specially on our sense of justice. Freedom of contract also depends, as the general rule, on our natural rights to liberty, so far as their exercise does not hurt others. There are modes of acquisition resting on natural law, others, everywhere recognised, which depend on utility, general convenience, so that only wrong modes of acquiring property, and immoral or had contracts, made under mistake or fraud, or force or undue influence, are to be condemned. History has also shown the necessity and universality of our present system of contract and property. Bentham has shown that both conduce to the general happiness, save as respects the laws of inheritance, and that anarchy and chaos would result from the abolition of property ; but the theory of natural law alone can show that property and contract conform in their essence to the principles of justice, though abuses may creep in, so that things have been made property that ought not to have been so made, and unjust contracts have been permitted and enforced which it should be the business of equity and wise and just legislation to correct. This theory of natural law, formerly held by all English moralists, has been denied or ignored since the ascendency of the utilitarian school. According to Austin, there are no natural rights, whether to property, life, of liberty whether of conscience, speech, or actions. There arc only legal rights resting on utility. And if this be so, property, life, and liberty are at the mercy of the sovereign, bo it one or a few or many ; in England, dependent on the mere will of the numerical majority, which might to-day confiscate or even abolish property, and next year restore it according to its ideas of its own interest : if this be so, might alone makes right, and it would be vain to urge that property is recommended and justified by considerations of utility, as the majority might think otherwise. On the other hand, each one of the majority has a sense of justice as part of his moral nature, and to this we can make appeal on surer grounds. It may be observed that «5 386 ENGLISH POLITICAL PHILOSOPHY Bentham himself admits a tendency to private property before law existed, and if so this inchoate property cannot owe its creation solely to law, but must have been due to the sense of justice, as well as the discovered general advantages of property, that is, to both justice and utility. Apply the test of utility, of the general happiness to laws, and changes will result. Apply the doctruie of natural rights, and changes also will result; but there is a limit to them in this case, and all elassfs can appeal to the sense of justice as a limit, because it is a measure that all possess, rich and poor alike, employers and employed. Thus then, finally, legal rights, rights of property, contractual rights, Qtc., are founded on natural rights or on utility. Those founded on natural rights are mostly conducive to the good of the greatest number. There may be, though rarely, a collision between the two, utility and natural rights, and when there is the natural rights must give way to the interests of the great majority, e.g. when a proprietor is forced in the general interest to sell his property, in which case his right is invaded, but the doctrine of natural law in such a case prescribes adequate compensation for the right set aside. It is not within my purpose at the end of this book to set forth in detail a philosophy of law founded on natural rights, but only to suy that the ignoring or denying natural rights, alike by the analytical school of Bentham and the historical school of Maine, is, in my opinion, a fatal omission in their views of the science of jurisprudence; in the case of the former it is in eflcct the denial of an original independent notion of justice, and the resolution of it into utility. The just, on Bentham's view, is the generally useful, that which most promotes happiness — a view which would justify slavery if the slaves have more material comfort than they would have if they were set free. In Maine's case, though, on the whole, he does not believe in natural law or natural right, yet he thinks the hypothesis has been, as a historical fact, useful to the Romans and to the moderns up to the eighteenth century, when in the hands of Rousseau it tended to the anarchic explosion that followed. It must be admitted that natural MAINE 387 law was the main weapon by which feudal abuses and oppres- sions were attacked in France ; but it was a perverted notion of the sovereign people directly exercising sovereign attributes without representatives or agents that was the chief cause of the anarchy. The doctrine of natural law has since borne other and better fruits. But it can no longer be made a weapon of attack on the richer classes. On the contrary, it is now the great defence of the natural rights of property, old as the world. Maine has ascribed all the reforms in English law to Benthamism, of which he affirms that the Roman theory of natural law was the "counterpart." I think he has rather over-estimated the effect of Bentham; much of the law reforms of this century being made by legislators under their sense of justice, with little regard to Bentham'a utilitarianism. It is true that, when justice was aimed at, general utility commonly resulted, and this will continue, and most fortunately, since it is easier to discern what is just than what conduces to the general utility or the happiness of the greatest number. But, secondly, if natural law worked so well for the Romans and Benthamism, its "counterpart," so beneficially for our- selves, why not have a little more confidence in the older theory that aimed at justice, but constantly realised general utility, than in the newer one, when it is acknowledged to be so difficult to know what makes for the general happiness if sought irrespective of justice, which is the shortest and clearest route to it from the legislator's point of view ? It is granted that the whole theory of natural right must be supplemented and limited by considerations of utility, of reason, and of necessity, what history and reason alike show must be, and cannot be prevented. It is the historical method chiefly that teaches what must be from "^hai has always and everywhere been, from universal and eternal experience. . But it is the doctrine of natural law which shows what ought to be in general, in conformity with justice chiefly, but also with utility and necessity. Finally, there ia no necessary antagonism between the his- torical method and the theory of natural rightsi as Maine 388 ENGLISH POLITICAL PHILOSOPHY believes. All through the historical development considera- tions of natural justice as well as of utility were forces at work to produce changes in laws; while sometimes the selfish interests of ruling classes, military or priestly, effected changes; and sometimes, even though rarely, the commands of a despot. II. PROSPECTS OF POPULAR GOVERNMENT §^ In the preface to his work on Popular Oovernmentf Sir Henry Maine tells us that he had desired to apply the historical method to political institutions as well as to private law and institutions, hut that, just as in the case of private law, a mass of rii)cli)lu of jiupulution in not goiteially aciepted without quaUtication ; and olsuwhcro ho ailirius that puHtical economy is not Htrictly a Hci* neo, bo th«>ro id some justification for tho attitude ut* the many an lugaidii thi« »u(>i>otMHl suieutihc doctrine. MAINE 393 to port. It is amongst the simplest of economical truths that far the largest part of the wealth of the world is constantly perishing hy consumption, and that if it be not renewed by per^wtual toil and adventure, either the human race or the particular community making the experiment of resting without being thankful will be extinguished or brought to the very verge of extinction."^ What he is most afraid of is, that the democracy will tax the rich for their own beiefit under the name of philanthropic jnirposes, and with the result that the heart and energy to labour and Rave may be taken out of the saving classes, who may relax their efforts, and that a general material poverty may result as happened in the Turkish empire. The future of popular government depends, to a great extent, on whether the working classes seek to benefit themselves by class legisla- tion and taxation of the wealthy, or whether they depend on their own efforts and energies. There are only two sets of motives by which abundant wealth can be produced. "One is economical competition, which leads to wealth and inequality with it ; the other consists in the daily task, perhaps fairly and kindly allotted, but enforced by the prison or the scourge. So far as we have any experience to teach us, we are driven to the conclusion that every society must adopt one or the other, or it will pass through penury to starvation." His final conclusion, he thinks, may seem trivial. It is simply that the British constitution has lasted for a considerable time, and therefore popular governments elsewhere may last. But the British constitution up to 1884 was "a thing unique and remarkable," and on the whole successful ; the envy of the world, which other nations copied, but, with the peculiar exception of the United States, not very happily. So that, finally, the only evidence worth mention in favour of a long duration of popular government is to be found in the success of the British constitution during two centuries under special conditions, and in the success of the American constitution during one century under conditions still more peculiar and more unlikely to recur. * t*op\Uar Oovernmenif p. 40. 394 ENGLISH POLITICAL PHILOSOPHY On the whole, this ifl an able and suggestive essay, a little pessimistic, and not very original. For Mill also pointed out the danger of class legislation and the taxation of the rich. His conclusion, too, is somewhat like Carlyle's, who anticipated a short career for parliamentary government and the stump orator, which, and not the wire-puller, he considered its peculiar and worst product. Carlylo also thought it would probably be terminated by some Cromwell — for we ourselves have had a little experience of the subversion of the constitution by the military spirit, to which for some reason Maine docs not expressly refer. Carlyle also noticed another characteristic infirmity of our iK)pulttr government, or government by public opinion, which he compares to the navigation of a ship by a ** phantasm captain," by taking directions from the shore. In his opinion there was no cure for the evil sho.*t of its total abolition, for democracy had never really succeeded, and was on its trial even in the United States. I believe that both Maine and Carlyle have exaggerated the infirmities of parliamentary government, !or reasons given l)efore, which neeil not be repeated. All that need be said here is that there has been no unjustifiable taxation of the rich since the time Maine wrote ; while in 1895, under a most widened suffrage, the most Conservative Government since 1832 was returned ; nearly all the Socialist and Labour candidates having been rejected at the polls. In a second essay Maine enters more particularly into the nature of democracy, notes its peculiar difiiculties and the dangers that beset its course, and suggests finally the only safeguards he can think of. What is the proper meaning of democracy t he usks. It is simply a form of government in which the many are supiMJsed to govern. As a form of government, it has the same general ends as any other. It must preserve the national existence, and to this end must have able generals, statesmen, adminis- trators, skilled and cultivated diplomatists ; it must secure MAINE 395 order, make the laws obeyed, and as respects these several ends it labours under special difficulties. Such being democracy, merely a form of government, whence the enthusiasm or the terror its advent excites 1 His reply is that democracies are supposed to legislate more, to alter laws and customs in the way of reform. This is not quite true ; monarchies legislate also. What is true is that both monarchies and democracies are at first highly destructive, and legislate accordingly. " What a modern democracy fights with is privilege ; and it knows no rest till this is trampled out." But such legislation, he thinks, is transitory ; in the long-run there may be very little legisla- tion, as witness the small amount in the United States as com- pared with that in England. So in the case of Switzerland, the people desire little new legislation, and they have, even to the surprise of Radical leaders, rejected Radical measures by the Referendum. The opinion that there was an irresistible tendency through the ages towards democracy is quite modern, and chiefly due to De Tocqueville's book on Democracy in America ; but, according to Maine, it is altogether unsupported by the history of the last two thousand years. De Tocqueville based his sweeping con- clusion chiefly on the single example of America and the return of the democratic ideas of the great Revolution in 1830, when the Bourbon dynasty was overthrown in France. Democracy is only irresistible if the classes who could check it continue to say to themselves and others that it is irresistible. The enthusiasm in its favour is as modern as the belief in its irresistibleness. It was not shared by Aristotle and Plato, the ounders of political philosophy, who, in spite of all that Grotc can say to explain away the fact, thought it a bad form of government. The panegyrics now addressed to it are of French origin, coming from the oratory and literature of the first French Revolution, rehabilitated by Lamartine in his History of the Oirondim (1847), and Louis Blanc in his History of tlve French Revolution (1847-62). . History, Maine tells us, is the safeguard against these delusions, extravagances, and false historical generalisations. At the very dawn of history we find all three forms of 396 ENGLISH POLITICAL PHILOSOPHY government — monarohy, aristocracy, democracy. Aristocracy seems to be gaining on monarchy, and democracy on aristocracy. The Athenian Republic was an aristocracy, so was the Roman Republic. On the fall of the latter, for seventeen hundred years it was monarchy that was gaining — " there was on the whole for seventeen centuries an all but universal movement towards kingship." Evanescent revivals in Italy of popular government there were, but all the Italian Commonwealths, as well as all the feudal estates and Parliaments, *' with one memorable exception (our own), sank before the ever-growing power and prestige of military despotic govornmonts." " The historian of our day is apt to moraliae and lament over the change, but it was everywhere in the highest degree popular, and it called forth an enthusiasm quite as genuine as that of the modern Radical for the coming democracy. The Roman Empire, the Italian tyrannies, the English Tudor monarchy, the French centralised kingship, the Napoleonic dcs|)otisni, wore all hailed with acclamation, most of it perfectly sincere, cither because anarchy had been subilued, or bocatiHu potty local and domentic oppressions were kept under, or because new energy was infused into national policy. In our country, the popular government, born of tribal freedom, revived sooner than elsewhere ; protected by the insularity of its homo, it managed to live ; and thus the British Constitu- tion became the one important exception to the 'tendency of the ages,' and through its remote iutlueiice this tendency was reversed, and the movement to democracy began again. Nevertheless, even with us, though the king might be feared or disliked, the king's ofHce never lost its popularity. The Commonwealth and the Protectorate were never for a moment in real favour with the nation. The true enthusiasm was reserved for the Urstorutivn. ThuH from the reign of Auguutus CaBHur to the eHtublishment of the United States, it was democracy which was always, as a rule, on the decline; nor was the decline arrested till the American Federal Government was founded, itself the offspring of the British Constitution. At this moment democracy is receiving the same unqualilied eulogy which was once poured on monarchy ; ami though in its MAINE 397 modern shape it is the product of a whole series of accidents, it is regarded by some as propelled in a continuous progress by an irresistible force,"* And now, how far does this "inverted monarchy," as he calls democracy, deserve the reverence paid to it by so many T "The great philosophical writer who had the best opinion of it was Bentham," who claims that it was freer than other governments from " sinister influences " and sectional interesta. All people and classes, indeed, follow their own interest, and, whether one or a few or the many rule, they will prefer their own interest. " The remedy is to transfer political power to the entire community"; for they also will follow their interest ; but their interest, the good of the greatest number, is the proper end of government.^ This reasoning looks irresistible, but Maine thinks that the benefits and the praise claimed for democracy could be claimed on the same ground for monarchy, "particularly in its more absolute forms." " There is no doubt that the Roman Emperor cared more for the general good of the vast group of societies subject to him than the aristocratic Roman Republics had done. The popularity of the great kings who broke up European feudalism arose from their showing to all their vassals a far more even impartiality than could be obtained from petty feudal rulers ; and in our own day, vague and shadowy as are the recom- mendations of what is called a nationality, a State founded on this principle has generally one real practical advantage through its obliteration of small tyrannies and local oppressions." Bentham, he says, has been blamed universally for his "low view " of human nature. But, in truth, he took too high a view of its intelligence. The truths he so clearly saw are not visible to the many, but only to the few, "the intellectual aristocracy." History might have shown him the false views of their own interest that a multitude of men may take, but he knew little of history and cared little for its lessons. "Thus his fundamental argument turns against himself." Place power in the people's hand, they will use it, and rightly, ' Popular Oovtmfnenit pp. 81, 83. • Ibid* p. 88. 398 ENGLISH POLITICAL PHILOSOPHY for their own interest, said Bentham. But, argues Maine, 'Hhey are too ignorant to be capable of understanding their interest, and this is the chief argument against democracy." "The immunity from sinister influences which Bentham claimed for democracy should, he thinks, have been extended to absolute monarchy. Tlie interest of the monarch is identical with that of the generality (as llobbcs had long before maintained). Bentham probably would have replied that an absolute ruler would favour the military, official, or courtly classes — the classes nearest himself. But the truth is that under the shelter of both "all sorts of selfish interests breed and multiply, specu- lating on its weaknesses and pretending to be its servants, agents, and delegates." Still he allows, after making all qualifi- cation, that democracy has "some portion of the advantixges which so masculine a thinker as Bentham claimed for it." But put the advantages at the highest, democracy or " inverted monarchy " is the most difficult of all kinds of government, and its difficulty lies deep in human nature and the causes which determine human volition. For in spite of such phrases as the Will of the People, the General Will, etc., a very large multitude cannot have a will, cannot, unless on the very simplest and most definite issue, form an act of volition, cannot come to an agreement. The only thing it can do, and must do, is to accept the decision and will of another, and act as if it was its own, whether that of the great party leader, the local party leader, or the counsel of an impersonal newspaper. This, multitudes always tend to do ; and even in the case of much smaller numbers, as a jury, the whole would decide as the last eloquent advocate would persuade them, were it not that they are held in check by a clear-sighted, learned, and imi)artial judge, who brushes away the eloquent irrelevancies of the advocate, and who advises and directs their final judgment. In fact, it is so difficult for a multitude to come to a decision, a common agreement, and to act as a corporate body, that were it not for certain agencies that have been invented to blind the eyes and to produce the appearance of agreement, democracy, from this inherent difficulty, would be wholly unworkable. "The truth is," says Maine, "that the inherent difficulties of MAINE 399 democratic government are so manifold and enormous, that in large and complex modern societies it could neither last nor work if it were not aided by certain forces which are not exclusively associated with it, but of which it greatly stimulates the energy. Of these forces, the one to which it owes most is unquestionably Party." There follows an interesting sketch of the party hero, " debarred by his position from the full practice of the great virtues of veracity, justice, and moral intrepidity," who " could seldom tell the full truth, could never be fair to persons other than his followers and associates, could rarely be bold except in the interest of his faction " ; and again, a good account of the nature of party : a thing which resembles religion in that men are born into it, or stumble into it, but which is seldom chosen from private judgment or mature deliberation, of whose weak points, as in the case of religion, men will not speak, except to co-religionists ; which they will not easily abandon, and to whose assistance, when in serious danger, they return. Party discipline is like military discipline, and party itself he thinks a "survival and a consequence of the primitive com- bativeness of mankind." ^ It is mitigated war, and its best his- torical justification is that, instead of frequent civil wars, we have only factions. Like war, it develops the high " but imi)erfect and one-sided virtues " of self-denial and sacrifice. " But wher- ever it prevails, a great part of ordinary morality is unquestion- ably suspended ; a number of maxims are received, which are not those of religion or ethics ; and men do acts which, except as between enemies, and except as between political opponents, would be very generally classed as either immoralities or sins," * * This would seem doubtful considering that there are entire nations, otherwise warlike enough, in which party does not exist, that it is most intense in the most civilised nations, but most of all because in England it had a definite origin and special causes in the reign of Charles i. (see Hallam's ConatUulional History, chap. ix.). In that reign opposing ]>arties fought it out in the field, and again, later, the Jacobites and Whigs, so that party strife would rather appear a mitigated form not of "primitive combativeness," but of a very recent combative spirit that hai) slept for a long time before the reign of Charles i. • Popular Oowmnunt, p. 101. 400 ENGLISH POLITICAL PHILOSOPHY Party in our times acts with great energy, and has a certain effect in bringing multitudes to one mind, and tlieir various wills to one will within each party. Nevertheless, one man's share of political power is so small (out of some seven million voters), that his consequent interest in politics would be slight, in spite of all the eflbrts of *' the caucus, the stump, and the campaign newspaper," were it not stimulated and seconded by a far less respectable force, which, to put it plainly, is no other than Corruption in one or other form ; which existed in England up to the French Revolution in the form of the purchase of votes in Parliament, and afterwards in Bentham's time in the shape of vested interests ; which exists in France in the shape of thousands of places and offices for partisans, and public works for the rank and file; while in the United States a similar system exists as to offices under the name of the "sjMiils system," introduced by Andrew Jackson, together with a huge taxation levied through protection, and spent in whole- sale bribery. In England we are now in a peculiar situation with respect to bribery : the making of appointments having been handed over to the Civil Service Commissioners, who select officials by competitive examination, there is only a small space for the "spoils system"; while the Corrupt Practices Act in many directions prevents direct bribery. It remains to be seen *'what will come of borrowing the caucus from America, and refusing to soil our fingers with the oil used in its native country to lubricate the wheels." Bribery, however, may be of two kinds — " giving jjlaces to expectant partisans paid out of the taxes," or, which is a shorter road, legislating away the property of one class and transferring it t<» another. The latter is likely to be the corruption of the future. These two things, party and corruption, greatly aid in the production, not of agreement, but the appearance of agreement, in a multitude. There is a third and very ellective agency. This is the manufacture and contident utterance of general propositions on iK)litical subjects ; a great device, which imposes on imperfectly educated men, who are much taken by it, almost as much as by ornate rhetoric. The party leader has MAINE 401 discovered the secret of the manufacture in abundance and variety, and, indeed, nothing can be simpler. Utter these general propositions, resting on the slenderest, flimsiest, and often irrelevant base of facts, unverified, perhaps unverifiable, in striking language, and crowds of men will assent to them, applaud them, " and thus there is formed a sort of sham and pretence of concurrent ojunion." Such loose acquiescence in vague general propositions is a bad mental habit, which has "seriously enfeebled the French intellect. It is most injuri- ously affecting the mind of England, and it threatens little short of ruin to the awakening intellect of India." Thus, then, though democracy has some of the advantages which the "thinker of the first order (Bentham) claimed for it," it has the great disadvantage of being the most difficult of governments from its very nature j and the only means of reducing the difficulty, namely, party, corruption, and the manufacture of sham generalities, are influences injurious either to the morality or the intellect of the governing multitude. Far from having an elevating efl'ect, morally, and an educational effect, intellectually, as ^lill argued, a participation in politics will have the exactly opposite efl'ect in the opinion of Maine. And this likely result was also apparent to the intuitive glance of Carlyle, who, as usual, does not reason it out, but briefly and contemptuously describes the elFects of universal suffrage as "infinite amenability to beer and balderdash," which may be taken rotighly to correspond to Maine's corruption and spurious generalisations. As to remedies, now that democracy is so close, few or none have been suggested in England. He evidently rates as lightly • the remedies of Mill (his representation of minorities and plural voting), .as he differs from him as to the excellence of popular government Still, democracy may be made Safe and tolerable, by "wise constitutional provisions carefully thought out beforehand; the example of America proves it to be possible " ; but it also shows that it is unsafe to leave open a doubt on any single topic of consequence, a mistake which was made, as to State rights, which led to the terrible civil war. 26 I 40a ENGLISH POLITICAL PHILOSOPHY The remedy for us is to borrow a few of the American securities against surprise or haste in constitutional legislation. To put our constitution into writing is not enough. Much is already in writing. What is necessary is to make a distinction between ordinary legislation and constitutional legislation, and to require for the last a special legislative procedure intended to secure caution and deliberation, and as near an approach to impartiality as a system of party government will admit of. Otherwise we are drifting to "a typo of government asso- ciated with terrible events,— a Single At;sembly, armed with full powers over the constitution, which it may exercise at pleasure. It will be a theoretically all-powerful Convention, governed by a practically all-ix)werful secret Committee of Public Safety, but kept from comi)leto submisHion to its authority by obstruction, for which its rulers are always seek- ing to find a remedy in some kind of moral guillotine." * In his Essay on the "Age of Progress," we have a large subject unsatisfactorily treated, and not altogether in accord- ance with his former views. He first notes that a passion for political change, for the transformation of laws and institutions in a democratic direc- tion, manifests itself in all the more civilised communities j a passion resembling the enthusiasm fur religious reform of the sixteenth century, but much less intelligible. He raises the question whether this passion' is confined to the region of politics, whether it is due to *' exceptional causes atfecting the sphere of politics, or whether it is a universal and permanent phenomena," that is, whether it is a desire for change in all other directions — in usages, manners, fashions, religion, morality, etc., and that continually. His conclusion is, that the passion is due to exceptional causes applicable to politics alone, and that it is not likely to be permanent even when so restricted. Let us see his reasons. In thi* first place, he argues — and it is an old idea of his— that ^ Tojuilar Uoi'ernmenl, \k IJU. MAINE 403 few cominuuities will so much as tolerate the idea of a change in their usages, laws, and institutions. The great mass of man- kind, the entire ^lohamraedan world, the coloured races of Africa, the countless myriads of Chinese, the vast majority of the millions of Hindoos, all detest what we call reform ; only the " undoubtedly feebler Japanese " * can tolerate it. Thus, then, the enthusiasm for change is rare ; not only so, whore it does exist, it is quite modern. It took its rise in France in the middle of the last century, a time when there was no legislation in England and no desire for it. It was due to Rousseau's speculations and ideas ; it was largely the cause of the French Revolution, after which the ideas came to England, and there united with a peculiarly English stream of opinions of the same general tendency due to Bentham. But the love of change thus generated is, he thinks, limited to politics, perhaps only to a part of politics. For man in general, in the larger part of his nature, is a conservative animal that lives by use and wont — a creature of habits, as the proverb says, and much change is distasteful to him. Burke's *' sullen aversion to innovations " is not confined to Englishmen ; it is characteristic of the species, and extends to nearly everything. Man does not change his habits, his code of manners, his customary behaviour. Look again at fashion, supposed to be so changeable, yet the changes are so limited that it is ever returning on its former self, ever reproducing its own past state. The changes are confined within the narrowest limits, and much that appears new is really old. And the world of fiction in literature, now largely written by women, proves that half the human species have no sympathy with change, are not votaries of progress, since it is in past typea of life and ways of life that they find their ideals. Moreover, the study of savage races, supposing them to resemble our own remote ancestors, shows that after all our boasted civilisation we have departed less from the primeval man or the savage than is commonly supiwsed. The veneer of > But, strange to say, "these andonbtedlj feebler Japanese " have since shown they are not feebler, and mainly because they hare s'^own a remarkable capacity for taking up progrcssiye ideas in all directions. 404 ENGLISH POLITICAL PHILOSOPHY civilisation is thin, underneath it is the savage, which, like his brother savage, makes war, dances, is fond of hunting, values rhetoric at a high price, has his " totem " in the shape of his party newspaper, and, " like tlie savage, is apt to make of his totem his God." If, now, the nature of man in general is so immobile, whence the passion for ix)litical change t It is not ilue, as some supjiose, to progress in scientific invention and discovery, there being little or no connection between progress in this direction, the producticm of new ideas, and innovating legislation. It is otherwise in the l^^ist, he allows, but not in the West, in which it has rather been half or quasi-sciences, like 13entham's Law RefonUi or Ricardo's Political Economy^ that have extensively affected legislation for a time, but which "have now fallen almost entirely out of fashion." The reasons he assigns are : first and chiefly, that legislation is one of the chief activities of government, all of which are viewed with great interest by the public, for he allows that popular government is the most "interesting" of all govern- ments. Legislation, and the discussion that accompanies it, is so interesting that life with us would be somewhat fiat without it J as witness the Russian despotic government, where the mere monotony of the general life has, it is thought, sometimes induced Czars to make war as a relief from it. It is interest- ing not merely to legislators who introduce ] Jills and watch their progress, but to the most skilful politicians. The game of party politics is interesting to the jmblic just as a cricket match is, and the match goes on for half the year in Parliament, and again during the recess on the platform. Secondly, the opposite parties are stimulated to compete with each other in the production of innovating legislative programmes. But to regard party politics as a highly interesting game is a somewhat dangerous frame of mind; still more when the stakes are legislative measures on which the wliole future of the country may depend ; but most of all when the legislation affects the constitution, which may at present be alteretl with OS much ease and in the same manner as a new law may be passed. He concludes that "it is not {lossiblc to have an MAINE 405 infinity of legislation at once safe and beneficent," and adds that the probabilities are that ** the possibilities of reform are strictly limited."^ AVe are apt to be too confident, because we have been so fortunate in the past, because we have been uniformly victorious and prosperous. " We have never lost a battle in Europe, or a square mile of territory ; we have never taken a ruinous step in foreign politics ; we have never made an irreparable mistake in legislation. Not so with other nations like France." But if our competing politicians multiply occasions for calamities, as their game prompts them to do, "it is possible and even probable that they will occur." Thus, then, the causes of the belief that ours is an age of progress, and that we are to have endless legislation, are the increasing tendency of governmental activity towards legisla- tion, the competition of parties which stimulates their ingenuity in the production of new legislative programmes, finally the interest of the public in the game and the applauses of the gallery. There are, however, other and deeper causes, especially two formerly famous theories, which, though now nearly dead and half-forgotten, are yet still efficacious. Through words and associated phrases which they have left behind them, the theories have taken up a new life, and, like the wounded hero in the Border ballad, " When their legs are smitten off, they fight upon their stumps." One of these theories is that of Rousseau, founded on the natural rights of man ; the other, the theory of Bentham, based on the greatest happiness principle. They have had great influence in jwlitics and, even outside the domain of i^litics, in literature. Thus Dickens, who is always * Compare the Early History of InslitiUionSy in which ho thinks that the increasing energy of Legislatures is a characteristic of modem States, and of our century in particular (p. 898) ; also where he praises Najioleon for the highly beneficial legislation of the Code, which has been largely adopted by other countries. 4o6 ENGLISH POLITICAL PHILOSOPHY attacking abuses, legal or social, was influenced by Bentham ; while Thackeray in his contempt for the artiticiulities of civili- sation was, he thinks, under the influence of Rousseau. "The influence which the political theory originating in France and the political theory originating in England still exercises over politics seems to hie as certain as anything in the history of thought can be." It is therefore necessary to examine these theories. And this he proceeds to do. Happily, it is not necessary to follow his exposition : the theories having been already given to the reader, a few words with reference to his criticism may suftice. The theory of Kousseau is partly due to Hobbes, he remarks; and this is partly true. If the sovereignty belongs to the people, all Hobbes' attributes go with it. This is Hobbes ; but that the people are the true source of sovereign authority, and may some- tunes resume their original power, is to Ikj found in Locke, and Kousseau merely pushes the doctrine to its extreme limit by declaring that their sovereignty is inalienable. This theory, he tells us, is the parent uf a host of phrases, *' the people," the " sovereign people," sole source of all legiti- mate power, etc. It is also the source of the vastly more formidable conception of the " omnipotent democratic State rooted in natural right : the State, which has at its absolute disjKJsal everything which individual men value, their property, their persons, and their independence ; the State, which is bound to respect neither precedent nor prescription ; the State, which may make laws for its subjects, what they shall eat or drink, and in what way they shall spend their earnings ; the State, which can confiscate all the land of the conununity, and which, if the etfect on human motives is what it may be exi)ected to be, may force us to la)K)ur on it when the older incentives to toil have disappeared." Nevertheless " this political sjteculation, of which the remote and indirect consequences press us on all sides, is of all specu- lations the most baseless." This is true in one sense. The supposed compact is not a historical fact, as before said, and, so far as history teaches, political societies did not originate in this way. But it is not enough to disprove the historical MAINE 407 basis. Ho should prove that men have no natural rights either political or civil ; and this is not so easy to do for anyone who believes in natural law in any sense, and even believes it has been of great service to men, as Maine does, though he dislikes the modern apjilications of it. "Some particles of Rousseau's thouglit may be discovered in the mental atmosphere of the time," he tells us. " Natural law " and " natural rights " had a great attraction for the lawyers of France. This is true and very significant ; it is indeed one reason why the theory conquered in France for a time, and in the end. Lawyers, the judges, jurists, all believed in natural law as part of the civil law, as partly the source of legal rights ; but have men in civilised States no natural rights, political as well as civill are there not certain rights no government should infringe, as rights to civil and religious liberty t Men have such natural rights, and it is from their existence alone that we can defend ourselves from Rousseau's omnipotent democratic State. Rousseau is the best answerer of Rousseau, for the doctrine of natural rights alone can defend us from the arbitrary despotism whether of one or many. lie rightly points out Rousseau's grand error ; he was averse to rf'prescntation ; he was thinking only of a small community like a Swiss canton, where the sovereign people could meet and directly legislate.^ The other theory to which Maine refers was Bentham's, which he thinks bears a considerable resemblance to Rousseau's, since in elFect it makes the people sovereign ; the difference lies in its different philosophic basis. Bentham rests his theory on the greatest happiness of the greatest number as the proper standard of legislation. T^ws should aim at this, not at realising and legalising natural right. Maine objects tndy that when the multitude is made sovereign it suffers from two difficulties. It cannot easily come to a decision or agreement at all ; and, secondly, it does not know wherein its happiness consists or how it can be best promoted. Rousseau was wiser here. He knew that the omnipotent sovereign people was not all-wise. * Sicycs, the great constitution builder, corrected Ronsseftu'i error In this respect. 408 ENGLISH POLITICAL PHILOSOPHY Hence the vast importance of wise legislators, especially at the first founding of States, to which, us we have seen. Mill also agrees. Both the theories were originally theories of law reform. Bentham was not a constitutional reformer till after Waterloo, when he was past sixty years ot age. Now, law refonn is a less serious matter than constitutional reform. In the former a mistake may be corrected. Not so in the latter ; there is no retracing steps, and a mistake made may be the beginning of the ruin of a great nation. His conclusion is that the ideas current as to the age of progress in which we are supposed to live require revision and modification. Progress, he repeats, is not the natural condition of man. This love of change is confined to u few, and with them it is extremely modern, not much more than a hundred years old in France, or fifty years old in Great Britain. Moreover, it is confined to political change. We are familiar with the way in which the innovating theory has worked. A small minority get the car of iuiporUint governing i)erson8 and try to pei-suade them to adopt their ideas. So it was in France ; so it was in England before the Heform Bill, when Bentham and the philosophical Riidicals got their ideas taken up. People submit to the process, for the most part, owing to the '* remote ellect of words and notions derived from broken-down political theories." It follows if society is not normally changeable, the attempt to conduct it safely through the unusual and ex- ceptional process of change is not easy but extremely difiicult. ** A sudden and sweeping political reform coustiintly places the community in the position of an individual who should mount a horse solely on the strength of his studies in a work on horsemanship." He raises the question why historical constitutions (like ours), the product of experience, have so great an advantage over a priori constitutions founded on speculative assumptions (such as the various constitutions in France from 1791 onwards). His reason is that " liuman nature has always a limited MAINE 409 capncity, aa in general it has very slight taste, for adjusting itself to new conditions. The utmost it can do is to select parts of its experience and apply them tentatively to these conditions ; and this process , is always awkward and often dangerous. A community with a new (\ priori political constitution is at best in the disagreeable disposition of a British traveller whom a hospitable Chinese entertainer has constrained to cat a dinner with chopsticks. Let the new institutions be extraordinarily wide of experience, and in- convenience becomes imminent peril. The body-politic is in that case like the body - natural, transported to a new climate, unaccustomed food and strange surroundings. Some- times it perishes altogether. Sometimes the most unexpected parts of its organisation develop themselves at the expense of others ; and when the ingenious legislator had counted on producing a nation of self-denying and somewhat sentimental patriots, he finds that he has created a people of Jacobins or a people of slaves." ^ The question is pertinent, because the question of the reform of the House of Lords will be before the public again, and the question whether we are to go on assumption or experience will again arise. It is the one institution least changed from its original form. AVhat is wanted from a Second Chamber is the security afforded by its concurrence with the First Chamber after full examination of the measures concurred in. To improve the House of Lords is not, as many think, a desperate undertaking. Its members are great landowners, true, and for the moment landed property is threatened. But most of the objections to it lie against all private property, and there may again be a time when it is recognised that the possession of a great estate, as is natural in a form of ownership probably descended from a form of sovereignty, implies mere administrative power and kindlier relations with other classes having subordinate interests than almost any other kind of superiority founded on wealth. But a hereditary Legislature is absurd, an objector urges. Not so, says Maine ; it accords with scientific theory. » Pp. 176, 17fl. 410 ENGLISH POLITICAL PHILOSOPHY Ab to individuaU it ia a mere chance under any form of government whether they will be qualified. But if the. qualities necessary can be attained in a class it is likely they will be transmitted (on Darwinian principles) to their children as a class. Finally, it is said the ago of aristocracies is over. As to this he is not certain, but he thinks it one of the chief drawbacks of democracies, that though they easily produce despotism, they do not seem capable of producing aristocracy, though from that form all improvement has hitherto sprung. Now, this question would seem to depend on the meaning of the word " aristocracy," whether of birth or wealth or ability. Certainly, both of the latter have been produced in France and America, while if we were to reckon England as a democracy still more examples of natural aristocracies might be cited. Maine himself allows that wealth was in ancient times one of the roads to nobility, and it is so still with us. The nation generally, but chiefly the great middle class, has jjroduced states- men, generals, Indian administrators and governors, judges, chief justices, bishops, archbishops, not to speak of great men of letters, science, invention, and art. In this sense under our popular government we have produced an aristocracy (some of whom have been admitted into the Ui)per Chamber) j but if England is not allowed to count as a democracy, France and America have i)roduced the like class, the born aristocrat and leaders of men. But on this question and the question of heredity, perhaps, on the whole, the words of Professor Sidgwick, the result of a careful weighing of opposite con- siderations, come nearest the truth : — " The chance of obtaining superior intellectual qualifications through physical inheritance in the sons of statesmen, though it must bo allowed to be worth something, is too indefinite and uncertain to be worth much. Again, a hereditary legislator has no doubt special opportunities of obtaining the best educational preparation for a statesman's career, and of imbibing the results of political experience in the intimacy of domestic and social intercourse ; but these advantages would seem to be, on the average, at least balanced by the temptations incident to rank and wealth, and the absence of the spur to sustained intellectual MAINE 411 eflort whicli economic necessities or social ambitions supply to youths of humbler origin." ^ §6 It is curious how diflFerent the views of philosophers may be on this subject of progress. Thus we have seen Mill's visionary hopes of boundless progress of all kinds; we were yet mere children, compared with the grown men to come; much and early and long-continued progress in all directions was to be expected, in particular social and political and moral progress, largely by the reform of bad laws and institutions, especially after we have obtained a true science of society, but which he conffjsses had not appeared up to 1864. On the contrary, in the case of Maine we see how narrow a man can be, how he can misread the last three hundred years of progressive history, when treating of the same subject of pro- gress, and what fears and alarms he associates with this same process of improvement in laws and institutions which in his earliest work was the theme of all his praises. 1 have first to note that he shows a confused and vacillating conception of progress, and that even his final definition in the present book is a narrow one. He began by identifying progress with improvement in laws and customs {Ancient LaWj p. 22), which is a very narrow view of it, though he was in sympathy with that narrow view, since he praises the Romans for the improvements they effected in their laws by following the model of natural law, while he deplores the condition of the Hindoos condemned to remain stationary through their law, being stereotyped in the Code of Manu. The Romans were progressive, and that was well ; the Hindoos and Chinese were not, and he tries to explain the fact. But when he wrote the History of Institntions, fifteen years later, he has so far advanced as to discern that progress is a wider thing than the improve- ment of law. "Progress is in fact the same thing as the continued production of new ideas," ^ whether in law, litera- } Etements 0/ PdWics, li. A7^, * History ttf Institutums, p. 22^, 4ia ENGLISH POLITICAL PHILOSOPHY ture, religion, or art, in which aenso he atlirmed that both India and China had considerably progressed in the past. In this sense there is progress in the modern Western world, unknown to the ancient world, scientific discoveries and in- ventions, "changing the material conditions of life, and new rules of social conduct ; the chief of this lost class, and certainly the most powerful in the domam of law proper, being the famous maxim that all institutions should ho adapted to produce the greatest happiness of the greatest number." We have here a wider and a truer view of progress, but yet not wide enough, since it makes no reference to science or invention to which the new science leads, nor yet to pliilosophy. But in his Popular Government^ while adhering to his definition of progress as the " production of new ideas," he for the first time refers to the new science and invention as part of progress, and even aa the chief cause of the remainder of progress or the production of new ideas. Thus he says, "If progress bo understood, with its only intelligible meaning, that is, as the production of new ideas, scientific inventions and scientific discovery are the great perennial souires of these ideas. Every fresh conquest of Nature by man, giving him the command of Jier forces, and every now and successful interpretation of her secrets, generate a number of new ideas, which finally displace the old ones and occupy their room."* This is largely true. It is for Maine a wholly new theory, 6r rather, for the first time we have a theory, a cause assigned for the fact i)f progress. But it is not his own theory. It is to be found in Mill, who obtained it from Comtc. It is largely but not oltogether true. The progress of positive science has during the past three hundred yeare allected religion, philosophy, invention, even literature. liut it has only been as moral, political, and economical science that it has afiected govern- ment and legislation. But these he thinks are not properly sciences. True science, which is really connected with progress or the production of new ideas as its cause, has no tendency to introduce innovating legislation. Hut ho has already laid down in his Karly Uistorij of InmHtutions as a * Popular Government, p. 145. MAINE 413 part of progrcsB, " new rules of social conduct," and in the domain of law proper Bentham's "famous maxim that all institutions should be adapted to produce the greatest happiness . of the greatest number/* and if so, those people whom h© blames for thinking changes in the law to be part of progress are not so far wrong. It was, in fact, the whole of progress, according to his own earliest definition of it.* Thus, he says, in progressive societies " social necessities and social opinion are always more or less in advance of law. We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable. The societies we are speaking of arc progressive. The greater or less happiness of a people depends in the degree of promptitude with which the gulf is narrowed." Hence one would think a need of perpetual new legislation. And in fact, so long as Maine holds equally with Bentham, as he does, that that is the true aim of legislation,^ ameliora- tive, progressive legislation must go on, laws must be added to, amended, repealed, until the aim is reached, so far as possible. Equally with Bentham he is committed to innovating legislation, unless indeed ho is prepared to maintain that our laws and institutions do already conform to Bentham's standard, that the goal of perfect law which assures the greatest happi- ness of the greatest number has been reached. In fact, he rei)eatedly praises Bentham as a law reformer, but he appears to think that the work of law reform as conceived by Ben- tham is finished. But law reform, the mere removing of illogicalities, contradictions, etc., mere formal improvements, was not the whole reform that was in Bentham's mind. He also contemplated improvement in the matter of law, remedial, ameliorative legislation — legislation in the interest of the greatest number wherever it has been overridden and set aside by the *' sinister interest " of the old governing classes. This kind of legislation has been going on, and numerous laws for the benefit of the working classes, for the removal of just grievances, have been passed. And tliis kind of legislation will go on till all just claims are satisfied — till the claims of 1 AneierU Ijaw, p. 24. * Early ffittory 0/ IrutilutUmSt p. 400. 414 ENGLISH POLITICAL PHILOSOPHY justice an4 the general happiness are all satisfied and har- monised. It will not indeed be an endless process. Much has been done in the past sixty years, and at an increasing rate in the past twenty years. There still remains something to be done, but it cannot now be great in proi)ortion, though it may still be important. The argument against democracy that it cannot know its own interest, or how to promote it, does not seem to me to be of much weight. For the people can obtain representatives, the ablest in the kingdom, to serve them, who can find out their true interest for them, and, so far as it can be furthered by legislation, effect such legislation. As to his general view of progress, it is confused and incon- sistent, while his theory in his last book, so far as true, is anticipated by Comte. In Maine's view, as in that of Burke, there would be little room for originality or progress in the moral and political and economical sciences, hardly even in juris- prudence, which he set out in his Ancient LatOf to reconstruct on a firmer basis. The new theories, in morals, politics, economics, of the eighteenth century were imperfect, no doubt, but they contained new ideas. They were even progress, ac- cording to his definition of it, and they were improved upon, that is, there was further progress in the construction of these imperfect sciences, which are not yet completed. The fact is, for more than three hundred years there has been a long progress in the true sense, a change for the better generally ; the introduction of new things as well as the " pro- duction of new ideas " ; not merely the creation of new sciences and new inventions, but progress in the discovery of truth in all directions — in religion, philosophy, law, and government; a prodigious outburst of new ideas in poetry, both in the sixteenth and nineteenth centuries; an evolution of new emotions in fine art and music in the seventeenth and eighteenth centuries. There has been ever more and more progress during the past century and a half, especially in science and invention, — progress unparalleled in the history of the world, — so that rightly we may say, in spite of Maine, that we do live in the Age of Progress. And the progress has been grand, on the wliole, in Hpite of some loss and drawback». MAINE * 415 There are, indeed, as 1 have already stated, signs that wc are ncaring tlie term of this long progress of more than three centuries. When our theology has been revised under the light of philosophy and criticism, and philosophy revised under scientific conceptions and the widest scientific conclusions, — and all this is being done, largely has been done, and soon will 1)C substantially finished, — progress in this direction will then also be finished, and it may be long before any further change be possible or desirable. When this stage has been reached, further changes in philosophy or religion will be slight. Men will want them for use, instead of prolonged discussion. As for art and literature, they will continue to be produced ; they merely change with the spirit of the age, and with the social and spiritual environment; but it is not in their nature to progress much. Maine rightly holds that scientific inventions and practical discoveries will continue to be made indefinitely, which may bring with them certain political and social changes, the nature of which it is impossible to foresee, but only thus far that they will not substantially affect, though they may modify, the main conclusions of political philosophy or the fundamental institutions of society and law, to which they chiefly relate. For nothing can substantially and permanently change these except a general change in the nature of the human units, of which institutions and laws are merely the outward expression ; and such a change is not merely, a» Maine holds, extremely rare, but also where it docs take place is extremely slow. THE END miRTBD RY MOtRtSOR AND OIRB LIMITtD, IDIRRIROII 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. RENEWALS ONLY— TEL. NO. 642^405 This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. ll£C'OtD lAAR «/- 1976 J -ttfc cm. WR?6T6 MAR 1 8 1982 l£l^ IIAR241982 W~^ AUTO DISC OCT ^ JUL2 3K170 2 -- 73 -C PM 3 7 \S86 LD2]A-60m-3,'70 N5.:^P2sl0)476-A-32 General Library University of California Berkeley r D GtMEBftL UBRABV-U-CBtRKEUY m4^ W » ,