THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 RIVERSIDE 
 
 GIFT OF 
 
 Dr. Gordon Watkins

 
 THE ELEMENTS OF POLITICS
 
 MACMILLAN AND CO., LIMITED 
 
 LONDON BOMBAY CALCUTTA 
 MELBOURNE 
 
 THE MACMILLAN COMPANY 
 
 NEW YORK BOSTON CHICAGO 
 ATLANTA SAN FRANCISCO 
 
 THE MACMILLAN CO. OF CANADA, LTD. 
 
 TORONTO
 
 THE ELEMENTS 
 
 OF 
 
 POLITICS 
 
 BY 
 
 HENRY SIDGWICK 
 
 AUTHOR OF 
 ; THE METHODS OF ETHICS,' 'THE PRINCIPLES OF POLITICAL ECONOMY,' ETC. 
 
 THIRD EDITION 
 
 MACMILLAN AND CO., LIMITED 
 
 ST. MAKTIN'S STREET, LONDON 
 
 1908
 
 25 
 /to? 
 
 first Edition, 1891. 
 Second Edition, 1897. 
 Third Edition, 1908.
 
 PEEFACE 
 
 (1891) SOME years ago I was strongly impressed with the 
 need of a book which would expound, within a convenient 
 compass, and in as systematic a form as the subject-matter 
 might admit, the chief general considerations that enter 
 into the rational discussion of political questions in modern 
 states. Though there were many valuable treatises dealing 
 with particular portions of this subject, no English writer 
 so far as I knew had, since Bentham, attempted to treat 
 it as a whole : and though such a comprehensive treatment 
 must necessarily be brief, it appeared to me that even this 
 brevity would have some advantages. For such a general 
 treatment as I had in view, however full, must be for 
 practical purposes incomplete ; and an exposition severely 
 confined by limits of space would at any rate have the 
 merit of keeping this inevitable incompleteness steadily 
 before the minds of both writer and readers. The present 
 work is the result of an attempt to satisfy the need that I 
 have just described. The plan upon which it has been 
 composed I have endeavoured to explain in the first chapter : 
 it only remains for me here to record the chief debts that I 
 am conscious of owing to previous writers from whom I have 
 derived ideas, and to express my gratitude to the friends 
 who have aided me with criticisms and suggestions. 
 
 My general view of Politics was originally derived from 
 the writings of Bentham and J. S. Mill; and the earlier 
 portion of the book, which deals with the principles of 

 
 vi ELEMENTS OF POLITICS 
 
 legislation, is to a considerable extent composed on the lines 
 of Bentham's Principles of the Civil Code. But before com- 
 posing it I have endeavoured to profit by the study of 
 several more recent works on Jurisprudence and the Prin- 
 ciples of Law ; among which I may mention especially 
 Austin's Theory of Jurisprudence, Holland's Jurisprudence, 
 and Pollock's Principles of Contract. In later Chapters (XV. 
 and XVI.) of my first Part, which deal with international 
 relations, I am under special obligations to Hall's Inter- 
 national Law. I ought to add that in two or three chapters 
 of this first Part especially X. and XL I have had more 
 or less to go over ground already traversed by myself in my 
 Principles of Political Economy. So far as this has been the 
 case, I have not hesitated to borrow from my earlier work ; 
 though I have tried as much as possible to introduce such 
 differences of treatment as appeared to me appropriate to 
 the different scope and aims of the present treatise. 
 
 In the second Part of this book, which deals mainly with 
 the structure of Government, the views that I have expressed 
 have been partly derived from so great a variety of sources 
 that I find it difficult to estimate closely how much I owe 
 to any one previous writer. Still, among the English books 
 that I have studied with profit, I am conscious of special 
 obligations to J. S. Mill's Representative Government, Bage- 
 hot's English Constitution, Todd's Parliamentary Government, 
 Dicey's Law of the Constitution, and Bryce's American Com- 
 monwealth. I have also found Erskine May's Parliamentary 
 Practice, and Anson's Law and Custom of the Constitution, 
 most useful for reference. Among the foreign books from 
 which I have derived ideas and information, I may specially 
 mention the works of Gneist and Holzendorff, and 
 Bluntschli's Lehre vom Modernen Staate ; also the series 
 of monographs that make up Marquardsen's Handbuch des 
 offentlichen Eechts, as well as Dareste's Constitutions Modernes,
 
 PREFACE vii 
 
 and Demombyne's Constitutions Europe"ennes. Among 
 American books to which I am indebted I may especially 
 mention the Federalist, and Story's Commentaries on the 
 Constitution of the United States : I wish also to acknowledge 
 my obligations to the Political Science Quarterly edited by 
 the University Faculty of Political Science of Columbia 
 College J and the Studies in Historical and Political Science, 
 published under the auspices of the Johns Hopkins Univer- 
 sity. Finally, in speaking of the works of others by which 
 I have profited, I must not omit to mention an unpublished 
 course of lectures on the relation of Political Science to 
 History, delivered in the University of Cambridge by my 
 friend and colleague, Mr. J. E. Seeley, who has kindly 
 allowed me to read it in MS. 2 
 
 The books and articles by which, after arriving at certain 
 conclusions, I have subsequently found my reasonings sub- 
 stantially anticipated, are so numerous, that I forbear to 
 attempt even a selection from them : but I shall make an 
 exception in favour of Mr. Bruce Smith's Liberty and 
 Liberalism, on account of the fundamental importance of 
 the current confusion of thought which this writer has 
 anticipated me in attempting to remove. 3 
 
 In such a work as the present, there seemed to be a 
 special need of securing a comprehensive and many-sided 
 consideration of the various topics included. Impressed 
 with the difficulty of realising this unaided, I have allowed 
 myself, in seeking comments and corrections from others, to 
 encroach on the leisure and to trespass on the indulgence 
 
 1 I regret that the work on Political Science and Comparative Constitu- 
 tional Law, recently published by a member of this faculty Mr. J. W. 
 Burgess did not reach me till my own book was so far advanced that I did 
 not feel able to make use of it. 
 
 2 This course has been since published after the author's death under 
 the title of Introduction to Political Science. 
 
 3 I ought perhaps to add that my political views do not agree closely with 
 those of Mr. Bruce Smith.
 
 ELEMENTS OF POLITICS 
 
 of my friends to an unusual extent. I am specially grateful 
 to Mr. James Bryce, M.P., and Mr. A. V. Dicey, who have 
 read through the proofs of the whole of the work in its 
 original form ; l and whose suggestions and criticisms, and 
 memoranda on special points, have been of the utmost value 
 to me. The kindness of several other friends among whom 
 I would especially mention the Earl of Lytton, Mr. F. W. 
 Maitland, and Mr. T. Thornely has similarly aided me 
 with instructive comments on selected portions of the book 
 which I have submitted to them. One of these latter 
 Albert Eutson whose stores of information and reflection 
 were ungrudgingly placed at my service in several letters 
 and conversations, has unhappily been taken from us before 
 the completion of my work. 
 
 Finally, for the index appended to the volume, which I 
 hope will materially increase its usefulness, I am indebted 
 to Mr. James "Welton, B.A., scholar of Gonville and Caius 
 College. 
 
 (1896) In preparing the second edition I have carefully, 
 revised the book throughout, paying attention to such criti- 
 cisms of it as have fallen under my notice ; and have made 
 numerous alterations and additions, mostly of a minor kind. 
 The most considerable of these changes are in Chap. I. 2, 
 Chap. II. 1 and 2, Chap. XV. 1, Chap. XVIII. 1, Chap. 
 XIX., where 9 is new, Chap. XX., especially in 4, 5, 
 and 6, and Chap. XXVII. 4 and 5. Further, to make the 
 drift of the discussion in the last chapter more clear, I have 
 besides minor changes in the chapter itself added an 
 
 1 Several chapters have been subsequently added, enlarged, or almost 
 entirely rewritten, in consequence of the criticisms of my friends.
 
 PREFACE IX 
 
 Appendix containing in an enlarged form the criticism on 
 Austin's view of Sovereignty, which was not very fitly 
 placed in Chap. II. of the first edition. 
 
 The third edition is substantially unaltered. A few 
 verbal corrections have been made, and one or two small 
 changes justified by notes left by the author. 
 
 E. M. S.
 
 CONTENTS 
 
 CHAPTER I 
 
 SCOPE AND METHOD OF POLITICS 
 
 PAGES 
 
 1. The Theory of Politics, as here expounded, is concerned 
 
 with human societies, regarded as possessing Govern- 
 ment ......... 1-5 
 
 2. Its primary aim is practical, to determine what the 
 
 constitution and action of Government ought to be : 
 accordingly its method is not primarily historical . 5-10 
 
 3. Its principles are based on psychological propositions not 
 
 universally and absolutely true, but approximately true 
 of civilised men. It does not profess to furnish a 
 complete solution of particular problems . . . 11-15 
 
 4. It has two main divisions ; one concerned with the 
 
 Functions of Government, internal and external, and 
 
 the other mainly with its Structure . . . . 15-17 
 
 CHAPTER II 
 
 FUNDAMENTAL CONCEPTIONS OF POLITICS 
 
 1. Let us first examine the fundamental conceptions of 
 
 Government, Law, Right, Obligation .... 18-19 
 
 2. We may regard the civil law of a modern civilised state 
 
 as a body of rules laid down by the supreme Legislature 
 of the State : but Austin's statement that the power of 
 this Legislature is always legally unlimited requires 
 qualification . . . . . . . .19-30 
 
 3. " Obligation " denotes the relation of a rule or command 
 
 to a will constrained by it : a " Right " is the same 
 fact regarded in relation to the person to whom the 
 obligation is intended to be useful .... 30-32 
 
 xi
 
 xn 
 
 CHAPTER III 
 
 GENERAL PRINCIPLES OF LEGISLATION 
 
 PAGES 
 
 1. Assuming generally an orderly community, let us consider 
 
 on what principle the laws denning the primary civil 
 
 rights of the governed should be determined . . 33-37 
 
 2. The ultimate standard here adopted is conduciveness to 
 
 general happiness . . . . . . .37-39 
 
 3. There are various possible methods of promoting general 
 
 happiness ; but the action of government in modern 
 States is mainly based on the Individualistic principle, 
 which limits the internal functions of government to 
 the prevention of mutual interference among the 
 governed. Accordingly, I shall begin by examining 
 the application of this principle to the chief questions 
 of a civil code . ..... 39-43 
 
 CHAPTER IV 
 
 INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 
 
 1 . The Individualism here worked out must be distinguished 
 
 from that which takes Freedom absence of physical 
 and moral coercion as the ultimate and sole end of 
 governmental interference ..... 44-47 
 
 2. An examination of the chief civil rights that modern 
 
 governments actually aim at securing, under the heads 
 of Personal Security, Property, and Contract, shows that 
 the fundamental aim is not merely to prevent mutual 
 coercion, but to prevent mutual harm and annoyance 
 and interference with each one's efforts to procure the 
 means of happiness . . . . . . .47-55 
 
 3. No Individualist would apply " Laisser Faire " except to 
 
 sane adults : hence an Individualistic scheme must pro- 
 vide for the sustenance and care of children, and regulate 
 the relations of the sexes with a view to this . . 55-58 
 
 4. The Individualistic determination of rights of property 
 
 and contract will be discussed in the next two chapters. 
 Besides the protection of these rights, legal repression 
 of physical annoyance, of deception, of intimidation, of 
 disturbance of social relations by slander or otherwise, 
 is also to some extent necessary on the Individualistic
 
 CONTENTS Xlll 
 
 principle at any rate if interpreted, as here, in a utili- 
 tarian sense : though it is not always easy to define 
 generally the conduct that law should prohibit . . 58-66 
 
 CHAPTER V 
 
 ON PROPERTY 
 
 1. The Eight of Property in material things, as commonly 
 
 understood, includes the right to use, to exclude others 
 from using, to deteriorate or destroy, and to alienate ; 
 perhaps also to bequeath, but this last element I shall 
 treat separately ....... 67-70 
 
 2. On the Individualistic principle the "first discoverer" 
 
 may be allowed to appropriate, if the opportunities of 
 others are not thereby materially impaired ; but the 
 appropriator of land will usually owe some kind of 
 compensation to society for diminished opportunities of 
 obtaining utility . . . . . . .70-74 
 
 3. Appropriation of land for cultivation carries with it the 
 
 appropriation of vegetable products and tame animals. 
 The cases of uncultivated land and wild animals are 
 more doubtful : but the appropriation of the former 
 and indirectly of the latter may be justified from the 
 utilitarian point of view here taken by demonstrated 
 increase of utility ....... 74-75 
 
 4. Appropriation of the surface does not necessarily carry 
 
 with it a right to all minerals below the surface : and 
 in the case of rare and valuable minerals, it may be 
 expedient not to give the owner an exclusive right of 
 extraction. The appropriation of land reclaimed from 
 water depends on the labour required for reclamation . 75-77 
 
 5. Rights of partial use of material things may be appro- 
 
 priated and transferred. Among other property -rights, 
 copyrights, and in a more limited degree patents, 
 may be justified on the Individualistic principle . . 7780 
 
 6. For general security, ancient bonafde possession must be 
 
 admitted as a valid title to property .... 80-81 
 
 CHAPTER VI 
 
 CONTRACT 
 
 1. Enforcement of Contract is fundamentally important in an 
 individualistic system. The term is here used in a
 
 xiv ELEMENTS OF POLITICS 
 
 wide sense, to include agreements modifying rights 
 171 rem as well as those that only give rise to rights in 
 personam ........ 82-85 
 
 2. It is generally expedient to enforce contracts, if delibe- 
 
 rately made between persons possessing at the time 
 mature reason, and without illegal coercion or intimida- 
 tion 85-87 
 
 3. or wilful or negligent misrepresentation of material facts ; 88-90 
 
 4. and if the effects that they were designed to produce in- 
 
 volve no violation of law or cognisable injury to the 
 community ..'...... 90-91 
 
 5. It may become, through change of conditions, impossible 
 
 or on the whole inexpedient to fulfil a contract to 
 render future services. In such cases the obligation of 
 the promiser should be limited to at most compen- 
 sation for damage suffered by the promisee through non- 
 fulfilment. The further restriction on the obligation 
 which bankruptcy law admits is difficult to reconcile 
 with Individualism ; but in the main it may be justified 
 on utilitarian grounds . . . . . . 91-95 
 
 6. One-sided transfers of utility including promises 
 
 should, if adequately evidenced, be enforced on the 
 individualistic principle ...... 95-96 
 
 7. Any form of collective ownership with " limited liability " 
 
 should be allowed, on this principle, provided its con- 
 ditions are sufficiently explained by those who enter 
 into it to those who deal with them . . 96-97 
 
 CHAPTER VII 
 
 INHERITANCE 
 
 1. Theoretically, Freedom of Bequest is a doubtful point in 
 
 the Individualistic scheme : actually it is restricted in 
 several modern states by old limitations in the interest 
 of the family ; and sweeping limitations of it have 
 been recently proposed in the interest of the com- 
 munity ......... 98-100 
 
 2. Limitations in the interest of children seem only justi- 
 
 fiable, so far as necessary to secure children proper 
 training and sustenance till they can provide for them- 
 selves 100-101 
 
 3. The consideration of the drawbacks of fiduciary owner- 
 
 ship illustrates the theoretical difficulty of harmonising 
 Freedom of Bequest with due Freedom of the survivors. 101-104
 
 CONTENTS XV 
 
 4. The sweeping restrictions proposed by Bentham and Mill 
 
 seem dangerous ....... 104-105 
 
 5. Passing to Intestate succession, we may approve of ex- 
 
 clusion of collaterals in the degree proposed by 
 Bentham and of equal division "by stocks," on the 
 ground of conformity to natural expectations . . 105-108 
 
 CHAPTER VIII 
 
 REMEDIES FOR WRONGS 
 
 1. To remedy wrongs Government may intervene by en- 
 
 forcing Reparation or inflicting Punishment. The 
 distinction between the two is not quite so funda- 
 mental as it is sometimes held to be ; because the 
 primary aim of Punishment is Prevention, not Retri- 
 bution, 109-114 
 
 2. and the prevention of future mischief is an important 
 
 and generally the most decisive consideration in 
 determining when to enforce damages. At the same 
 time it is practically important to maintain the dis- 
 tinction ; since the governmental procedures appro- 
 priate respectively to Reparation and Punishment are 
 markedly different ....... 114-120 
 
 3. In some cases it is difficult to find a satisfactory mode of 
 
 Reparation: especially in the case of insults . . 120-122 
 
 4. The adequate degree of punishment is not easy to deter- 
 
 mine : it may be reduced by increased efficiency of 
 police and judicature. In selecting the kind of punish- 
 ment, the importance of Equability, Variability, 
 " Exemplariness," " Frugality," and Remissibility 
 should be noted . 122-125 
 
 CHAPTER IX 
 
 PREVENTION OF MISCHIEF AND PATERNAL INTERFERENCE 
 
 Besides actually enforcing Reparation and inflicting 
 Punishment for wrongs, Government should punish in- 
 citements to the violation of rights, intervene to check 
 it when committed or threatened, allow self-defence 
 and self-reparation in some degree, and imprison sus- 
 pected criminals. It may usefully give warning 
 against mischief, and watch processes liable to be 
 attended by it . .... 126-129
 
 xvi ELEMENTS OF POLITICS 
 
 PAGES 
 
 2. It has been disputed whether Government may properly 
 
 prohibit acts merely because they involve a risk of 
 mischief to others. But this kind of "indirectly 
 individualistic " interference seems clearly expedient in 
 some cases : nor can the amount of it be limited by 
 definite rules ; but, having inevitable drawbacks, it 
 should be minimised ...... 129-132 
 
 3. This "indirectly individualistic" interference blends in 
 
 practice with " paternal " interference in the interest of 
 the persons interfered with ; the distinction between 
 the latter and directly individualistic interference is 
 sometimes subtle, especially in cases of precautions 
 against imposition ....... 132-136 
 
 4. There seems no adequate reason for condemning abso- 
 
 lutely even " paternal " interference (with sane adults) ; 
 especially in mild forms ; such as interference by de- 
 clining to interfere . ...... 136-140 
 
 5. Individualism of course admits paternal interference of 
 
 Government to protect children from parental oppres- 
 sion or neglect ; but the consideration of governmental 
 aid to education carries us into the discussion of 
 Socialism . 140-142 
 
 CHAPTER X 
 
 SOCIALISTIC INTERFERENCE 
 
 1. Laisser Faire rests on two assumptions : (1) psycJwlogical, 
 
 " that individuals are likely to provide for their own 
 welfare better than government" ; and (2) sociological, 
 " that the common welfare is likely to be best pro- 
 moted by individuals promoting their private interest 
 intelligently." The first excludes "paternal," the 
 second " socialistic " interference. Neither assumption 
 is completely true ....... 143-146 
 
 2. In any case, on strictly individualistic principles, the ap- 
 
 propriation of natural resources by individuals may be 
 indefinitely restricted in the interest of the community. 
 Apart from this, abstract theory shows several cases in 
 which the individual's interest does not tend in the 
 direction most conducive to the common interest, even 
 assuming that utility to society is accurately measured 
 by market value ....... 146-151
 
 CONTENTS xvii 
 
 PAGES 
 
 3. These cases largely explain the extent to which, in 
 
 modern States, the provision of commodities is actu- 
 ally undertaken or regulated by Government, with 
 a view to benefit the community as a whole. This 
 kind of interference may be called, in a wide sense, 
 Socialistic ........ 151-154 
 
 4. Public expenditure for emigration, education and culture, 
 
 art and science, is defensible on similar grounds . . 154-156 
 
 5. An important amount of " Socialism " (in this sense) is 
 
 found in the civil law of the most individualistic of 
 modern States e.g. in the received limitation of copy- 
 right, and the limitation of contract by bankruptcy . 156-157 
 
 6. " Socialism," in a narrower sense, aims at greater equality 
 
 in the distribution of wealth. Public ownership and 
 governmental management of the instruments of pro- 
 duction would tend to realise this ; but would arrest 
 industrial progress and diminish the product to be 
 distributed. Still the gain of reducing the actually 
 existing inequalities of income is on the whole clear ; 
 and expenditure directed to this end, in the way of 
 equalisation of opportunities, is defensible on indi- 
 vidualistic grounds . . . . . . .157-163 
 
 7. Government provision 1 for the relief of indigence is 
 
 necessary ; but the best method of making it is diffi- 
 cult to determine. The rational determination of this, 
 and of the limits of Socialistic interference generally, 
 depends partly on varying social and political 
 conditions . 164-168 
 
 CHAPTER XI 
 
 THE MAINTENANCE OF GOVERNMENT 
 
 1. The effective performance of governmental functions 
 
 involves legal repression of either overt resistance to, 
 or indirect interference with, the discharge of official 
 duty 169-172 
 
 2. It also requires an extensive provision of (a) personal 
 
 services which, whether voluntarily or compulsorily 
 rendered, must be mostly remunerated, (6) material 
 products of labour, and (c) land or other natural 
 resources ........ 172176 
 
 3. The supply of funds thus required though tem- 
 
 porarily they may be to a great extent borrowed 
 must in the long run be mainly raised by taxation (in 
 a wide sense) . ' . . . . - 176-178
 
 XViii ELEMENTS OF POLITICS 
 
 PAOES 
 
 4. In distributing the burden of taxation, the principle 
 
 " that recipients of utility from Government should 
 pay in proportion to the utility received " should be 
 applied so far as it is fairly applicable. But the 
 utility of the greater part of the cost of Government 
 cannot be thus individualised ..... 178-181 
 
 5. In distributing the greater part of taxation, therefore, 
 
 " equality of burden " should be the aim. But only a 
 rough approximation to this is possible, especially as it 
 is desirable that the contribution of the poor should 
 mainly take the form of taxes on non-necessary con- 
 sumption. Taxes on inheritance are sui generis, and 
 may be fairly made a special burden on the propertied 
 classes . . 181-186 
 
 CHAPTEK XII 
 
 GOVERNMENTAL ENCROACHMENTS AND COMPENSATION 
 
 1. Governmental interferences with established private 
 
 rights are in various ways inevitable : it is therefore 
 important to consider how far compensation is conse- 
 quently due to private persons . .... 187-189 
 
 2. Except at special crises the products of industry should 
 
 generally be purchased by Government from voluntary 
 sellers at their market value ; but land may be fairly 
 taken compulsorily, at the price it would have had 
 apart from the governmental need, together with com- 
 pensation for any special loss which the previous 
 owner suffers in consequence. But the public may 
 claim as a set-off any additional value which accrues to 
 the remaining property of the person expropriated, 
 from the governmental use of the land taken. Other 
 invasions of legally secured expectations of individuals 
 should be compensated on similar principles . . 189-193 
 
 3. If changes in law determining rights of property and 
 
 analogous rights inflict definite and considerable 
 damage on individuals, a claim to compensation should 
 be admitted ; but not necessarily to full compensation, 
 so far as the most profitable use of the right was 
 before the legal change a subject of general moral 
 condemnation. ....... 193-197 
 
 4. Changes that aim at a more equitable distribution of 
 
 burdens of taxation do not speaking broadly justify 
 a claim for compensation. Nor, ordinarily, do changes
 
 CONTENTS 
 
 PAGES 
 
 in the industrial action of Government, unless the 
 amount of loss that they inflict on special classes is 
 peculiarly sudden and severe ..... 197-199 
 
 CHAPTER XIII 
 
 LAW AND MORALITY 
 
 1. Positive Law and Positive Morality may be distinguished 
 
 by their respective sanctions. But they also differ 
 importantly, regarded merely as intelligible systems ; 
 since in the former case doubts as to what is law may 
 be authoritatively removed by judicial interpretation, 
 and divergencies between what is and what ought to be 
 law may be removed by legislation .... 200-203 
 
 2. But with morality it is otherwise ; hence there is much 
 
 more vagueness, uncertainty, and variation in the estab- 
 lished moral code than in the established law . . 203-206 
 
 3. The danger of conflict with positive morality limits im- 
 
 portantly the action of government ; on the other hand, 
 positive morality is to some extent modifiable by the 
 legislator 206-208 
 
 4. Positive morality is further politically important, for the 
 
 repression by censure of various kinds of mischievous 
 acts which cannot so well be repressed by legal penalties, 
 and for the encouragement by approbation of benefi- 
 cent acts . . . . . . . . 208-212 
 
 5. Prima facie it would seem reasonable for Government to 
 
 provide and pay for teaching in morality : but there 
 are strong arguments on the other side. Practically, 
 the question for a modern Government is how far it 
 should subvent and control Churches. This will be 
 considered later (Chap. XXVIII.) . . . .212-216 
 
 CHAPTER XIV 
 
 THE AREA OF GOVERNMENT STATES AND DISTRICTS 
 
 1. It would be a great gain if the whole of civilised society 
 
 could be brought under a common government, for the 
 purpose of preventing wars among civilised men. But 
 it is at present hopeless to aim at this . . . 217220 
 
 2. A State is an independent society of human beings, living 
 
 in a certain degree of civilised order, and united by 
 obedience to a common government, which exercises 
 supreme dominion over a certain territory. Accord-
 
 XX ELEMENTS OF POLITICS 
 
 PAGES 
 
 ing to the political ideal, practically now dominant, a 
 State should be coextensive with a Nation ; i.e. its 
 members should be united by a further sentiment of 
 community, not dependent on the existence of a com- 
 mon government ....... 220-225 
 
 3. Even where this is not the case, a part of a State is not 
 
 held to be justified in attempting to secede from the 
 rest with its territory, except on grounds of serious 
 oppression or misgovernment ..... 225-229 
 
 4. Membership of a State is determined primarily by birth 
 
 either (1) from parents who are members or (2) within 
 the territory of the State ; but partly also by consent, 
 as expatriation is ordinarily free .... 229-232 
 
 5. Local differences in laws, within the limits of a State, are 
 
 largely due to historical causes ; how far such differ- 
 ences ought to be retained is a balanced question. 
 Other variations in legislation, and in other kinds of 
 governmental interference, have a reasonable basis in 
 differences of physical conditions .... 232-236 
 
 CHAPTER XV 
 
 PRINCIPLES OF INTERNATIONAL DUTY 
 
 1. The accepted rules of international duty are in the main 
 
 based on the principle of mutual non-interference : and 
 we may reasonably adopt this as the only principle 
 generally applicable to the relations of civilised States. 
 In applying this principle to international relations, 
 special questions arise ...... 237-246 
 
 2. (a) From the incomplete definiteness and coherence of 
 
 States as compared with individuals : for instance, the 
 partial interfusion of nations raises disputed questions 
 as to the determination of membership of a State, and 
 as to the legitimate treatment of resident aliens . . 246-249 
 
 3. Especially in the case of aliens who are fugitive law- 
 
 breakers from, or otherwise hostile to, a neighbouring 
 
 State . . 249-251 
 
 4. (6) The rationale of governmental control over portions 
 
 of the earth's surface is analogous, but not precisely 
 similar, to the rationale of private property in land. 
 Thus special questions arise in determining the legiti- 
 mate extent of this dominion, and the modes of acquir- 
 ing it ; also as regards the relations of members of 
 different States, in territory not under civilised govern- 
 ment . . 252-257
 
 CONTENTS xxi 
 
 PAGES 
 
 5. (c) In international relations a contract made under un- 
 
 just coercion cannot be treated as simply invalid . 257258 
 
 6. From the fact that the internal cohesion of States is 
 
 liable to be broken, difficult questions arise as to the 
 
 right of other States to intervene . 258-262 
 
 CHAPTER XVI 
 
 THE REGULATION OF WAR 
 
 1. If one State seriously infringes the international rights of 
 
 another, and obstinately refuses reparation, the latter 
 must be held justified in resorting to force, if arbitra- 
 tion is for any valid reason impracticable. And if 
 neighbouring States cannot combine effectively on the 
 side of justice, it only remains to impose impartially 
 on both parties rules limiting the mischief of war . 263-268 
 
 2. A belligerent must be allowed to inflict on his enemy 
 
 such mischief as is likely to be effective in disabling 
 him and inducing him to submit ; but he may be 
 expected to abstain from such mischief as does not 
 conduce to these ends importantly in proportion to its 
 amount, whether the mischief be personal injuries, . 268-271 
 
 3. or seizure of property : but he can hardly be expected to 
 
 abstain from levying severe contributions, even on the 
 property of non-combatants ..... 271-273 
 
 4. As for neutrals it is clear that belligerents ought not to 
 
 injure neutrals, nor neutrals to aid belligerents in their 
 warlike operations : but some difficult questions arise 
 in the effort to reconcile these two principles with each 
 other and the latter with common humanity in their 
 practical applications ...... 273-277 
 
 5. The regulation of civil war raises the further question 
 
 when and how far insurgents ought to receive, from 
 their own government or from neutrals, the rights and 
 privileges of ordinary belligerents .... 277-279 
 
 6. Grave difficulties are raised by the question " how far 
 
 agreements imposed on a State by an unjust victor are 
 
 to be held binding " 279-284 
 
 CHAPTER XVII 
 
 INTERNATIONAL LAW AND MORALITY 
 
 1. Among rules of international duty we may distinguish 
 those of which the breach is commonly held to justify 
 
 b
 
 xxii ELEMENTS OF POLITICS 
 
 force, from those of which the breach is only held to 
 
 justify disapprobation and complaint .... 285-287 
 
 2. But the distinction between the two is somewhat blurred 
 
 by the widespread toleration of actual or threatened 
 aggression on behalf of national interests, not justified 
 by recognised rules of international right. For various 
 reasons, too, the definition of international rights must 
 be much more imperfect than that of civil rights . 287-290 
 
 3. Moreover, what is commonly called International Law 
 
 differs from Positive Law within a State, and more 
 resembles Positive Morality, in having the distinction 
 obscure, and the transition gradual and indefinite, 
 between rules that are, and rules that ought to be, 
 established 290-293 
 
 4. Still, in respect of the process of changing it, International 
 
 Law occupies a position intermediate between Positive 
 Law and Positive Morality ; and certain parts of it 
 have reached a degree of definiteness which makes it 
 resemble the former more than the latter. But this is 
 not the case with the most important rules of inter- 
 national duty 293-297 
 
 CHAPTER XVIII 
 
 PRINCIPLES OF EXTERNAL POLICY 
 
 International duty cannot be determined on the basis of 
 exclusive regard for national interest, and must be held 
 paramount in case of conflict with the latter. But 
 it is generally though perhaps not always the 
 interest of a State to observe the recognised rules of 
 international duty, so long as it has a reasonable ex- 
 pectation that they will be observed by other States : 
 while in dealing with any State that will not observe 
 them, these recognised restraints must be held to be 
 correspondingly relaxed. It is a more doubtful question 
 whether a State ought to risk war to prevent high- 
 handed aggression by another State against a third . 298-302 
 
 Restrictions on free trade between States are inexpedient, 
 economically and politically, for the community formed 
 by the aggregate of the trading States ; and though they 
 may in certain cases bring economic gain to the par- 
 ticular State imposing them, they are not on the whole 
 to be recommended ; except possibly by way of re- 
 taliation . . 302-308
 
 CONTENTS XXlll 
 
 3. The free admission of aliens will generally be advantage- 
 
 ous ; but in certain circumstances it may be the right 
 
 policy to place restrictions on it . . . . 308310 
 
 4. Extension of territory through conquest, even when it is 
 
 not to be condemned as injurious to the conquered, is 
 doubtful in policy : the disadvantages and drawbacks 
 require to be carefully estimated in each particular 
 case 310-313 
 
 5. Expansion by conquest passes by gradual transitions into 
 
 expansion by colonisation ...... 313-315 
 
 6. Emigration in itself, under ordinary circumstances, is 
 
 rather to be regulated than systematically promoted by 
 government: ........ 315-319 
 
 7. except where the emigration is into territory under the 
 
 control of the same government, so that the disposal of 
 unoccupied lands affords a means of promoting it . 319-322 
 
 8. The management of the relations between colonists and 
 
 "aborigines" is a matter of much dimcxilty, requiring 
 
 careful regulations and restrictions .... 322-328 
 
 PART II 
 CHAPTER XIX 
 
 METHODS AND INSTRUMENTS OF GOVERNMENT 
 
 1. When we ask how Government is to be constituted to do 
 
 the work marked out for it, the need is at once manifest 
 of (1) a Judicial organ to decide whether and by whom 
 laws have been broken, and (2) an Executive organ to 
 prevent and punish such breaches, and enforce repara- 
 tion for wrongs inflicted by them, to manage the foreign 
 relations of the State, and to levy the necessary taxes. 
 Further, as a security against oppressive taxation, there 
 is need of a Money-granting organ independent of the 
 Executive 331-336 
 
 2. The need of Legislation is also clear, in order that legal 
 
 duties may be definite and " cognoscible," . . . 336-340 
 
 3. and therefore of a Legislative organ even if Govern- 
 
 mental interference be restricted to the Individualistic 
 minimum . 340-343 
 
 4. If we admit as modern States generally do some 
 
 amount of " indirectly individualistic," " paternal," and 
 " socialistic " legislation, the need of a continually
 
 ELEMENTS OF POLITICS 
 
 active Legislature becomes still more palpable ; and 
 also the need of a larger and more complex Executive ; 
 though part of the additional work thus rendered 
 necessary may be assigned to semi-public institutions . 343-347 
 
 5. It is important that Executive functions whether 
 
 coercive or non-coercive should be carefully kept 
 within the limits of the law ; and therefore supervised 
 by a legislative organ wholly or mainly distinct from the 
 executive : also the organisation of the Executive should 
 be under the control of the " money-granting " organ, 
 which, again, we may assume to be wholly or mainly 
 identical with the Legislature ..... 347-351 
 
 6. The Executive organ will therefore be normally sub- 
 
 ordinate to the Legislature, as is, indeed, implied in the 
 term " executive " : though it must be admitted that 
 this term does not well describe the functions of the 
 organ so called, so far as it deals with foreign affairs . 351-353 
 
 7. The Judicial, as well as the Executive organ, should be 
 
 distinct from the Legislature ..... 353-356 
 
 8. But, for various reasons, the threefold distribution of 
 
 Governmental functions among organs distinguished as 
 Legislative, Executive, and Judicial, cannot be made 
 complete 356-364 
 
 9. It is an error to think that systematic discussion of the 
 
 proper construction of these organs is unprofitable 
 
 because " constitutions are organic growths " . . 364-366 
 
 CHAPTER XX 
 
 THE LEGISLATURE 
 
 1. Legal experts should have a large and responsible share 
 
 in legislation ; but representatives periodically elected 
 by the citizens at large should constitute the whole, or 
 a chief part, of the organ of legislation ; because such 
 persons are more likely to have empirical knowledge 
 of, and keen concern for, the legislative needs of the 
 community, than legislators otherwise selected ; and 
 their legislation is more likely to be acceptable to the 
 governed 367-374 
 
 2. The representative system is also widely commended 
 
 perhaps too confidently as tending to improve the 
 electorate, intellectually and morally . . . . 374-378 
 
 3. Prvma facie, the electorate should include all self-support- 
 
 ing sane adults : but the exclusion of some may be
 
 CONTENTS XXV 
 
 justified by special proof (a) that their interests will 
 not suffer, or (&) that they will make a dangerously bad 
 use of the franchise, through intimidation, bribery, or 
 demagogy 378-383 
 
 4. Extreme ignorance, crime, and disgraceful conduct, 
 
 pauperism, bankruptcy, are valid reasons for exclusion : 
 there are also reasons of a different kind for excluding 
 certain classes of employees, especially soldiers. There 
 seem to be no adequate reasons for excluding women 
 as such 383-388 
 
 5. The danger of legislation oppressive to the rich is ad- 
 
 mitted : but the obvious plan of meeting it by allotting 
 more electoral power to persons of wealth and education 
 involves serious disadvantages and drawbacks . . 388394 
 
 6. The electorate should be divided locally, not by free 
 
 combination : division into equal single-member con- 
 stituencies has the advantage of simplicity, but the 
 disadvantage of artificiality. In the case of electoral 
 divisions with several members, the representation of 
 substantial minorities should be secured by some form 
 of the method of the quota 394-400 
 
 7. For the most part, the right to be elected should be 
 
 extended coincidently with the right to elect : but it 
 seems expedient to keep the post of legislator unsalaried 
 thus giving an advantage to candidates of inde- 
 pendent means ....... 400402 
 
 8. Election in two stages is not to be recommended except 
 
 perhaps for a Second Chamber. .... 402-405 
 
 9. The legislative assembly should be of moderate dimensions, 
 
 working largely by Committees. Initiation of legisla- 
 tion should be free to all members. The necessary 
 quorum requires careful consideration . . . 405-407 
 
 CHAPTER XXI 
 
 THE EXECUTIVE 
 
 1. For the efficient working of the Executive organ, especi- 
 
 ally at crises, it is expedient that the most important 
 part of its work should be under the control of a 
 Supreme Executive ...... 408-412 
 
 2. Generally speaking, the work of the Executive officials 
 
 should be voluntary and remunerated ; and the workers 
 
 in various grades appointed by official selectors . . 412-415 
 
 3. Qualifications for the lower posts should be partly ascer- 
 
 tained by external examinations : and it may be neces-
 
 xxvi ELEMENTS OF POLITICS 
 
 sary, as a protection against political partisanship, that 
 the examinations should be competitive, and entirely 
 determine admission to the vacancies. As regards 
 higher posts, a responsible superior official should have 
 free choice among duly qualified persons . . . 415-418 
 
 4. Each department should have an individual head, for 
 
 concentration of responsibility : but for some important 
 decisions a council should be consulted ; and its con- 
 sent should be required in certain cases . . . 418-420 
 
 5. The tenure of office should be formally or practically 
 
 on "good behaviour," subordinates being removable 
 from particular employments at the discretion of the 
 chief, but not dismissible from the service without a 
 quasi-judicial inquiry ...... 420-422 
 
 6. The heads of departments with or without other persons 
 
 should form a Council or Cabinet that should be 
 consulted on the most important Executive decisions. 
 This Council should have an individual head ; and it 
 seems most conducive to efficiency to give him the 
 appointment and perhaps the dismissal of the heads 
 of departments : but it does not seem expedient to 
 concentrate formally in his hands the power and re- 
 sponsibility of Supreme Executive control . . . 422-426 
 
 7. But the relation of the Cabinet to its head must largely 
 
 depend on the relation of the Supreme Executive to 
 
 the Legislature 426-427 
 
 8. We may note the difference in this respect between 
 
 the English and the German types of Constitutional 
 Monarchy 427-428 
 
 CHAPTER XXII 
 
 RELATION OF LEGISLATURE TO EXECUTIVE 
 
 1. The simple subordination of the Executive to a single 
 
 assembly is objectionable ; partly as leading to excessive 
 interference of Parliament in administration, especially 
 dangerous in foreign affairs ..... 429-432 
 
 2. Other disadvantages attend the system of a Parliamentary 
 
 Executive, with large powers, but simply dismissible 
 
 by the assembly ....... 432-434 
 
 3. These disadvantages are somewhat reduced, in the English 
 
 constitution, by the power of dissolution which the 
 
 Cabinet possesses ....... 434-437
 
 CONTENTS xxvn 
 
 4. The formal monarch, in the English type of polity, is on 
 
 the whole a valuable, but not an indispensable, institu- 
 tion : but his value depends on his retaining as much 
 real power as is compatible with complete Parliament- 
 ary Government ....... 437-442 
 
 5. He need not necessarily be hereditary .... 442-443 
 
 6. The English type of Parliamentary Government leads 
 
 naturally to a certain fusion of legislative and exe- 
 cutive functions ....... 443-444 
 
 7. The harmony it maintains between Legislature and 
 
 Executive is a great advantage, but it is liable to be 
 realised at the expense of serious drawbacks, especially 
 instability and inexpertness of ministers . . . 444-447 
 
 8. Simple Constitutional Monarchy affords a means of 
 
 avoiding these drawbacks ; but it vests dangerous 
 powers in an irremovable individual, for whose com- 
 petence there is no adequate security. . . . 447-451 
 
 9. This last danger is avoided by the plan of a Periodical 
 
 Executive ; which is exemplified by the " Presidential 
 System " of the United States, but also admits of a non- 
 monarchical organisation ...... 451-455 
 
 10. The Executive should have some power of practically 
 
 legislating alone : but such power should be carefully 
 limited especially if there are long intervals between 
 parliamentary sessions. The Executive should also 
 have some share though probably less than has 
 become customary in England in the legislative 
 work of Parliament ; and a special control over finan- 
 cial proposals may advantageously be given to it . 455-459 
 
 11. The Legislature cannot conveniently be restrained from 
 
 dealing with particular cases in general legislation ; 
 but it should be restrained, by law or custom, from 
 interfering with the selection of individuals for 
 executive work, and from intervening directly in 
 the management of foreign affairs, except in certain 
 cases of special importance where the consent of the 
 supreme legislative and money-granting organ seems 
 ordinarily indispensable ..... 459-462 
 
 12. Some precautions are needed to obviate the danger of 
 
 undue influence, exercised by the executive on 
 members of Parliament ; especially the latter should 
 be generally incapable of holding the subordinate 
 executive offices . 462-464
 
 xxviii ELEMENTS OF POLITICS 
 
 CHAPTER XXIII 
 
 TWO CHAMBERS AND THEIR FUNCTIONS 
 
 PAGES 
 
 1. A second chamber is likely to be useful in checking 
 
 hasty legislation, impeding combinations of sinister 
 interests, and supplementing the deficiencies of the 
 primary representative assembly .... 465-468 
 
 2. To give the two chambers co-ordinate powers is the 
 
 simplest plan : but it creates a difficulty as regards 
 financial control, and is generally unsuited to Parlia- 
 mentary government : it is more suitable where the 
 Supreme Executive holds office for life or for a fixed 
 period ... 468-473 
 
 3. A senate designed to be co-ordinate in power with the 
 
 House of Representatives should be elected, directly or 
 indirectly, by the citizens at large, by some method 
 calculated to render it less amenable than the other 
 chamber to transient movements of popular feeling. If 
 its power is more limited, other modes of appointment 
 are suitable . ....... 473-478 
 
 4. The functions of the chambers may be conveniently 
 
 differentiated in various ways ..... 478-480 
 
 CHAPTER XXIV 
 
 THE JUDICIARY AND ITS RELATION TO OTHER ORGANS 
 
 1. The Judiciary should be in the main separate from the 
 
 Legislature ; but (a) the Legislature should somehow 
 avail itself of judicial experience ; and (6) the highest 
 Court cannot well be deprived of the power of making 
 Law to some extent ...... 481-484 
 
 2. The Judiciary should decide legal questions relating to 
 
 constitutional as well as civil rights, including member- 
 ship of the Legislature ; but the latter should be final 
 judge of its own procedure and order . . . 484-487 
 
 3. For the security of private citizens, it is important that 
 
 the Judiciary should be as independent of the executive 
 as possible ; this should be kept in view in determining 
 the appointment and dismissal of judges . . . 487-489 
 
 4. This is one ground for introducing an unprofessional 
 
 element into judicial tribunals; but this is also
 
 CONTENTS xxix 
 
 advocated on other grounds. This introduction may 
 
 take various forms, of which the jury is one . . 489-492 
 
 5. There are strong grounds for some introduction of 
 
 judges other than professional lawyers, where special 
 experience of affairs is required for right judgment ; 
 but, speaking generally, the weight of argument seems 
 against the use of a jury in civil trials ; there are, how- 
 ever, special reasons for adopting it in criminal trials . 492-499 
 
 6. There are important differences in the machinery 
 
 appropriate to civil and criminal cases respectively ; 
 especially a public prosecutor is required for the 
 latter ; though private prosecutions should also be 
 allowed, unless judicially checked .... 499-502 
 
 7. Appeals should generally be allowed on questions of law ; 
 
 it is more doubtful how far they should be allowed on 
 questions of fact. If the power of pardon is used as a 
 substitute in criminal cases, it should not be practically 
 exercised by the executive alone .... 502-504 
 
 8. The specialisation of the judiciary is a difficult question ; 
 
 in particular, it is doubtful whether there should be 
 "Administrative Courts" for any disputes of right 
 between government officials and private persons . 504-507 
 
 9. A special tribunal for dealing with official misconduct 
 
 of which the mischief falls on the public is in some 
 
 cases necessary, though difficult to construct . . 507-510 
 
 CHAPTER XXV 
 
 LOCAL AND SECTIONAL GOVERNMENT 
 
 1. Partially independent organs of local government are 
 
 required to realise the full advantages of representative 
 government ; but they involve certain drawbacks and 
 dangers, and the independent power allotted to them 
 requires careful limitation ..... 511-514 
 
 2. The division of areas and functions will be determined 
 
 by various considerations ; among which apart from 
 historical causes the degree of separation of interests 
 on the one hand, and the value of uniformity and 
 system on the other hand, are most important . . 515-517 
 
 3. The division of functions may be illustrated by road- 
 
 making, sanitary intervention, poor relief, and the 
 prevention and punishment of crime . . . . 517-521 
 
 4. An extensive devolution of legislative powers on local 
 
 governments has some advantages ; but they are out-
 
 XXX ELEMENTS OF POLITICS 
 
 weighed by the attendant drawbacks at least in the 
 case of a tolerably homogeneous community, of which 
 the parts are in active mutual communication . .521-525 
 
 5. Local Governments should be constructed on the general 
 
 principles before laid down for the organisation of the 
 central government, but with important differences in 
 their application ....... 525-526 
 
 6. In some cases governmental powers may properly be 
 
 entrusted to representatives of sections of the com- 
 munity not locally defined ; but such cases are 
 exceptional . 526-529 
 
 CHAPTER XXVI 
 
 FEDERAL AND OTHER COMPOSITE STATES 
 
 1. If the powers of local Governments are for historical or 
 
 other reasons extended beyond a certain point, the 
 State becomes practically composite ; if the component 
 parts are politically co-ordinate and constitutionally 
 separate, it becomes Federal ..... 530-532 
 
 2. Federality implies a constitutional division of powers 
 
 between the Governments of the part-states and the 
 Government of the whole, by which a substantial 
 autonomy is secured to the former ; and some expres- 
 sion of the separate political existence of the part-states 
 in the structure of a federal Government is natural, 
 though not essential. A federal Constitution will tend 
 to be stable ; but there should be some legal process 
 of changing it ....... 532-537 
 
 3. The distinction between a Federal State and a Confedera- 
 
 tion of States having a common organ of Government 
 may be variously drawn ; but it seems essential to a 
 well-organised Federal State that the common Govern- 
 ment should enter into important direct relations with 
 individual citizens ....... 537-539 
 
 4. Points of peculiar importance in the construction of a 
 
 Federal Government are (1) the appointment of the 
 organ that decides disputed questions of constitutional 
 interpretation ; and (2) the provision of adequate 
 security for the divergent interests of the part-states. 
 This latter presents a specially difficult problem where 
 the parts are few and unequal ..... 539-542 
 
 5. A Federal Union enables its members to enjoy most of 
 
 the military and economic advantages of large states,
 
 CONTENTS XXXl 
 
 with the minimum sacrifice of local independence and 
 individual freedom ; the inconveniences of a federal 
 state are chiefly weakness of internal cohesion and 
 diversity of localised legislation .... 542-544 
 
 6. The relation of dominant states to dependencies has 
 
 usually a partial resemblance to one or other of the 
 forms of federal union with the fundamental distinction 
 that the members of any dependent part-state have no 
 control over the common Government of the whole. 
 Such dependencies chiefly arise either through (1) Con- 
 quest in which case the form of government will 
 reasonably vary with the amount of coercion required 544-546 
 
 7. or (2) through Colonisation. In this latter case the 
 
 most expedient relation between mother-country and 
 colony will partly depend on the character and future 
 destiny of the colony ; but in any case the Colonial 
 department of the Central Government has a difficult 
 task, and should be very carefully organised . . 546-550 
 
 CHAPTER XXVII 
 
 THE CONTROL OF THE PEOPLE OVER GOVERNMENT 
 
 1. In West-European States generally, the share of the 
 
 people at large in Government is confined to the 
 election of legislators ; it is therefore very important 
 to ascertain precisely the relation which is or ought to 
 be thus established between electors and elected. A 
 common view of representative government is, that the 
 "people govern through their representatives" . . 551-553 
 
 2. If this view is sound, it would be desirable to give the 
 
 electorate a more direct and complete control over their 
 representatives than is attempted in any European 
 country except Switzerland ; but I think, on the 
 contrary, that it should be the constitutional duty of 
 the elected legislator to act on his own judgment . 554-558 
 
 3. I think, however, that the direct intervention of the 
 
 citizens at large is desirable in certain special cases ; 
 chiefly (1) to settle a disagreement between two legisla- 
 tive chambers, or (2) when changes are required in a 
 rigid constitution, not alterable by the ordinary process 
 of legislation 558-560 
 
 4. A rigid constitution, if the rigidity be not excessive, is a 
 
 useful barrier against hasty fundamental changes ; but 
 it has some drawbacks especially the difficulty of
 
 xxxii ELEMENTS OF POLITICS 
 
 finding an unexceptionable organ for deciding con- 
 stitutional disputes ....... 560-566 
 
 5. Constitutional rules other than structural should be 
 
 based on special reasons for distrusting the judgment 
 
 of the ordinary legislature ..... 566-569 
 
 6. Such rules may be needed to protect the freedom of 
 
 individuals from legislative encroachment ; but it is 
 difficult to make them very precise without hampering 
 the legislature unduly. Examples of this class are 
 rules protecting free speech and freedom of the press . 569-571 
 
 CHAPTER XXVIII 
 
 THE STATE AND VOLUNTARY ASSOCIATIONS 
 
 1. Political Government of the coercive association called 
 
 the State is only one species of government. The 
 voluntary associations found in modern political 
 societies have a kind of government, distinguished 
 from political government by its very limited power 
 of inflicting penalties ...... 572-574 
 
 2. A special danger of obstinate disobedience to Government 
 
 arises in the case of such associations, when their aims 
 conflict with those of Government, through the con- 
 sciousness of strength which association gives ; this 
 danger may constitute an adequate ground for special 
 repressive intervention. Similar reasons for special 
 intervention are applicable in the case of political 
 meetings 574-577 
 
 3. Moral coercion by acts not illegal apart from their 
 
 coercive purpose may be exercised by such an associa- 
 tion to an extent gravely mischievous ; but it is difficult 
 to lay down legal rules that will effectively prevent 
 the mischief, without too severely restricting freedom. 
 This applies especially to industrial associations ; 
 which may also be economically mischievous to the 
 community as a whole, through monopoly. . . 577-583 
 
 4. Churches perform a function useful to the State, which 
 
 seems likely to be better performed if they are kept 
 independent of the State apart from the danger of 
 conflict between Church and State. How far this 
 danger justifies a permanent interference of Govern- 
 ment to avert it is a more difficult question, the right 
 answer to which seems to vary witk circumstances . 583-585 
 
 5. If special control over Churches is required, a compara- 
 
 tively unobjectionable mode of exercising it is by
 
 CONTENTS xxxni 
 
 PAGES 
 
 granting certain religious associations certain minor 
 privileges and indirect endowments, which they would 
 be afraid of losing in case of conflict. If the Church 
 possesses funds derived from private sources, a more 
 drastic kind of interference will be easy in case of 
 conflict, and may be expedient even apart from 
 conflict . . 585-588 
 
 CHAPTER XXIX 
 
 PARTIES AND PARTY GOVERNMENT 
 
 1. The natural division into parties for political purposes 
 
 would seem to be multiple, not dual ; whether the 
 parties are based on similarity of convictions or on 
 community of interests . . . . . .589-593 
 
 2. The decisive impulse towards a permanently dual 
 
 organisation of parties appears to be given by the 
 desire to carry elections, especially elections in which 
 the Supreme Executive is directly or indirectly ap- 
 pointed 593-595 
 
 3. The dual party system tends to diminish the instability 
 
 that attaches to Parliamentary Government, and to 
 render the criticism of governmental measures more 
 orderly and circumspect ; but it tends to make party- 
 spirit more comprehensive and absorbing, party- 
 criticism more systematically factious, and the utterances 
 of ordinary politicians more habitually disingenuous. 
 It also aggravates the defects of representative govern- 
 ment in other ways ...... 595-600 
 
 4. Certain remedies, partly political, partly moral, may be 
 
 suggested for these evils ; the former will vary with the 
 
 precise form of government adopted .... 600-603 
 
 CHAPTER XXX 
 
 CLASSIFICATION OF GOVERNMENTS 
 
 1. The current classification of forms of government is 
 
 originally derived from the results of Greek political 
 experience ; but the modern use of the leading terms 
 is materially different from the Aristotelian use . . 604-609 
 
 2. "We may distinguish two different conceptions of the 
 
 fundamental principle of democracy. The first is ex- 
 pressed in the proposition "that Government should rest 
 on the active consent of the majority of the governed."
 
 xxxiv ELEMENTS OF POLITICS 
 
 This is not, however, understood to imply that this 
 majority should have the right to interfere authorita- 
 tively in any and every governmental decision . . 609-613 
 
 3. Hence the principle of democracy, as above conceived, 
 
 may be accepted without accepting the further proposi- 
 tion " that any honest and self-supporting citizen is as 
 well qualified as any other for the work of government." 
 Its acceptance is therefore compatible with a full 
 admission of the need of specially qualified persons for 
 the greater part of the work of Government . . 613-616 
 
 4. In fact the representative system combines the principle 
 
 of aristocracy in the sense of " the rule of those best 
 qualified to rule " with that of democracy ; it also 
 tends to have a useful element of oligarchy, if the 
 representatives are unpaid ..... 616-619 
 
 5. The principle of monarchy is also to an important extent 
 
 reconcilable with that of democracy .... 620-622 
 
 CHAPTER XXXI 
 
 SOVEREIGNTY AND ORDER 
 
 1. The question where Supreme Political Power actually 
 
 resides in a State cannot be satisfactorily answered 
 without a careful definition of Political Power. Political 
 power, in an orderly society, is exercised by or through 
 some organ of government ; it is the power exercised 
 in such a society by persons whose directions to other 
 members of the society will be enforced, if necessary, 
 by physical violence though the fear of this violence 
 is not the sole motive producing obedience to such 
 directions ........ 623-625 
 
 2. The power exercised by any individual or body of persons 
 
 on an organ of government is not strictty political 
 power, unless the former is able to withdraw or 
 diminish the governmental power of the latter . . 626-628 
 
 3. It is doubtful how far a body that can dismiss an organ 
 
 of government is to be regarded as its political superior 
 (1) if it can only dismiss at certain periodic intervals, 
 or (2) if it is not completely capable of corporate action 628-630 
 
 4. In a certain sense it is true that the mass of the people 
 
 in any country is the ultimate depository of political 
 power. But in other than democratic states this power 
 is unconsciously possessed, unexercised, and largely un- 
 feared. Still the wishes of the community impose 
 some limits on governmental power, even in un-
 
 CONTENTS xxxv 
 
 democratic communities, through the fear of disorder 
 and, for a similar reason, leaders of opinion outside 
 Government have a share of political power . . 630-633 
 
 5. If we ask where supreme political power rests in a State 
 
 with a given governmental structure, we must extend 
 further the assumption that it is " orderly " ; we must 
 take " order " to include performance of the assigned 
 functions, on the part of the different organs of 
 Government ........ 633-638 
 
 6. The actual complexity in the distribution of political 
 
 power will be further illustrated by considering the 
 question "where supreme political power resides," in 
 relation to the chief forms of Government distinguished 
 and discussed in previous chapters .... 638-643 
 
 7. The effective physical force of different sections of the 
 
 community is by no means proportioned to their 
 numbers. A standing army of professional soldiers is 
 therefore a source of danger to a State . . . 643-645 
 
 8. A moral right of insurrection, as an ultimate resource 
 
 against misgovernment, must be admitted in a 
 democratic community, no less than under other forms 
 of government ....... 645-650 
 
 APPENDIX, ON AUSTIN'S THEORY OF SOVEREIGNTY . . 651-658 
 INDEX . . 659-665
 
 CHAPTER I 
 
 SCOPE AND METHOD OF POLITICS 
 
 1. ON moral questions, in our age and country, most 
 persons are accustomed from comparatively early years 
 to pronounce confident decisions ; sometimes arrived at 
 intuitively, or at least without conscious processes of 
 reasoning, sometimes the result of rational processes of 
 more or less length. The citizens of a modern state at 
 least if it is under government in any degree popular are 
 similarly accustomed to decide unhesitatingly many, if not 
 all, of the political questions which the course of their 
 national life brings before them ; but in this case, to a 
 greater extent than in the former, the decisions are arrived 
 at as the result of conscious reasoning from certain general 
 principles or assumptions. Now, the primary aim of the 
 Political Theory that is here to be expounded is not to 
 supply any entirely new method of obtaining reasoned 
 answers to political questions; but rather, by careful 
 reflection, to introduce greater clearness and consistency 
 into the kind of thought and reasoning with which we are 
 all more or less familiar. In order to arrive at sound con- 
 clusions on practical questions I do not mean infallible 
 conclusions, but conclusions as free from error as human 
 beings, in the present stage of their development, can hope 
 to reach much detailed knowledge is needed which the 
 general theory of politics cannot profess to give : it can 
 only point out the nature and sources of this further 
 
 B
 
 2 ELEMENTS OF POLITICS CHAP. 
 
 knowledge, and the manner in which it is to be applied. 
 The general theory of politics ought to classify the con- 
 siderations by which any given political question should be 
 decided, and indicate their general bearing on the question : 
 but the degree of weight to be attached to each species of 
 considerations in any particular case is usually difficult to 
 estimate precisely without special experience : so that the 
 main practical use of the theory is to show how experience 
 is to be interrogated. Still, clearness and precision in our 
 general political conceptions, definiteness and consistency in 
 our fundamental assumptions and methods of reasoning, 
 though they do not constitute anything like a complete 
 protection against erroneous practical conclusions, are yet, 
 I believe, of considerable practical value ; and the system- 
 atic effort to acquire them deserves an important place 
 in the intellectual training of a thoroughly educated man 
 and citizen. 
 
 We may appropriately begin by trying to attain clear- 
 ness and precision in our general conception of the subject 
 investigated. In the first place, it seems to me convenient 
 and in accordance with usage to draw a distinction, 
 which is sometimes overlooked, between " Politics " and 
 the " Social Science," or, as it is now most commonly called, 
 Sociology. I take the former study as having a narrower 
 scope than the latter : Sociology, as I conceive it, deals with 
 human societies generally ; Politics with governed societies 
 regarded as possessing government, that is, societies of 
 which the members are accustomed to obey, at least in 
 certain matters, the directions given by some person or 
 body of persons forming part of the society. The differ- 
 ence between the two subjects is not indeed great, if we 
 merely consider the number of human beings included in 
 either case ; since the great majority of mankind are, and 
 have been in historical times, members of political or 
 governed societies. Still, we know of inferior races who 
 only exhibit this characteristic doubtfully and imperfectly : 
 as Mr. Spencer points out (Princ. of Soc. 228), "groups 
 of Esquimaux, of Australians, of Bushmen, of Fuegians, are
 
 SCOPE AND METHOD OF POLITICS 
 
 without even that primary contrast of parts implied by 
 settled chieftainship. Their members are subject to no 
 control but such as is temporarily acquired by the stronger, 
 or more cunning, or more experienced." Such groups, 
 therefore, lack what we now regard as an essential character- 
 istic of political society, though they can hardly be excluded 
 from the range of " Sociology " or the " Social Science." l 
 
 But we are more concerned to note that the members 
 even of societies that have settled governments have 
 relations to each other of the greatest importance, which, 
 though they could hardly be maintained without govern- 
 ment, are still, in the main, not determined by it : and, 
 accordingly, in those branches of social science which are 
 primarily concerned with these other relations, the fact of 
 government drops properly into the background. Con- 
 sider, for instance, the industrial or professional system 
 of modern communities, by which men are distinguished 
 from and related to each other as physicians, teachers, 
 masons, carpenters, etc. This vast system of relations, 
 with all the minutely subdivided organisation of labour 
 which it involves, has been in the main constructed with- 
 out the direct action of government : though, no doubt, it 
 could not be maintained without the enforcement, through 
 governmental agency, of rights of property, contracts, etc. ; 
 and though it has been importantly modified to a varying 
 extent in different ages and countries by direct govern- 
 mental interference. Accordingly, it has been possible for 
 the followers of Adam Smith to separate almost entirely the 
 study of the industrial organisation of society under the 
 name of " Political Economy " 2 from the study of its 
 
 1 Even in the case of superior races, in a primitive condition, it is often 
 difficult to find anything that can be properly called government except 
 during war. Thus Burckhardt (Notes on the Bedouins, i. pp. 115-16) tells 
 us that though "every Arab tribe has its chief sheikh, and every camp is 
 headed by a sheikh or at least by an Arab of some consideration," still 
 ' ' the sheikh has no actual authority over individuals . . . his commands 
 would be treated with contempt, but deference" may be "paid to his 
 advice." 
 
 2 In my Principles of Political Economy (Introduction, ch. ii. 2) I have 
 pointed out that the term " Political Economy " was originally used to denote
 
 ELEMENTS OF POLITICS CHAP. 
 
 political organisation : and this separation I hold to be in 
 the main expedient, though it is liable to be carried too far. 
 We have also to note what is sometimes overlooked by 
 writers who lay stress on the analogy between the organism 
 of an individual man (or other animal) and the " social 
 organism " that human beings, considered in respect of 
 their industrial or economic relations, fall into groups differ- 
 ing widely, both in extent and in sharpness of definition, 
 from the groups into which they are combined by their 
 political relations. Thus most of the citizens of any Euro- 
 pean community have, through foreign trade, economic 
 relations of more or less importance with the members of 
 some other communities : and not a few of them have a 
 closer economic connection with some foreigners than they 
 have with most of their fellow-citizens. 
 
 There are other relations of various kinds by which 
 civilised men, in the present age, are socially connected 
 into groups not coinciding with either of those just dis- 
 cussed. Some of those groups religious societies being 
 the most important example have a kind of government, 
 and may therefore be called quasi-political. But, as they 
 exist in modern * countries generally, they differ from 
 political societies in the important characteristic that the 
 government of such a quasi-political group cannot inflict 
 on its members any (mundane) penalty more formidable 
 than exclusion from religious ceremonials and from 
 voluntary social relations ; whereas the penalties inflicted 
 by the government of a political society at any rate if 
 its political character is fully developed extend to depriva- 
 tion of liberty, property, and even life itself. Other groups 
 again for example, those constituted by the possession of 
 a common language and literature have, as such, no 
 government at all. The influence exercised on the lives 
 of individuals by both kinds of relations constitutes a very 
 
 an art rather than a science the theory of right governmental management 
 of national industry, and not the theory of the manner in which industry 
 tends to organise itself independently of governmental interference. 
 
 1 I mean by "modern" the type of State now prevalent in Western 
 Europe and America.
 
 SCOPE AND METHOD OF POLITICS 
 
 important part of the whole fact of social organisation ; 
 but I only refer to it here in order to make clear the 
 distinction above drawn between " Social Science " or 
 " Sociology," which treats of human society generally, and 
 " Politics," which treats of political societies regarded in 
 their political aspect : i.e. as under government. Such a 
 society, when it has attained a certain degree of civilised 
 order, and is in settled occupation of a certain portion of 
 the earth's surface over which its government exercises 
 supreme control, we call a State. 1 
 
 2. The question, however, still remains how far Politics 
 can be properly or advantageously separated from the general 
 science of society. To this question J. S. Mill (Logic, Bk. vi. 
 ch. ix. 4) appears to give a decidedly negative answer. 
 He says that there can be no separate science of govern- 
 ment ; government being the fact which of all others is 
 most mixed up, both as cause and effect, with the qualities 
 of the particular people or of the particular age : in treating 
 of the phenomena of government we have to take account 
 of " all the circumstances by which the qualities of the 
 people are influenced." He holds, accordingly, that "all 
 questions respecting the tendencies of forms of government 
 must stand part of the general science of society, not of any 
 separate branch of it." Of this general science, as he after- 
 wards explains (ch. x. 2), " the fundamental problem is to 
 find the laws according to which any state of society pro- 
 duces the state which succeeds it and takes its place." And 
 the solution of this problem, as he goes on to explain, can 
 only be advantageously attempted by a method primarily 
 historical : we must obtain from history empirical laws of 
 social development, and afterwards endeavour to connect 
 these, by a process which he calls " inverse deduction," with 
 " the psychological and ethological laws which govern the 
 action of circumstances on men and of men on circum- 
 stances." In Mill's view, in short, Theoretical Politics can 
 only be scientifically studied as one part or application of 
 the Science or Philosophy of History. 
 1 See Chap. XIV. 2.
 
 6 ELEMENTS OF POLITICS CHAP. 
 
 Now, I agree with Mill in holding that the scientific 
 study of the structures and functions of the different 
 governments that have actually existed in human societies 
 cannot well be pursued in complete separation from the 
 scientific study of other important elements of the societies 
 in question : whether the aim of the student is to ascer- 
 tain the causes of the differences in such governments or 
 to examine their effects. But I do not think that there 
 is any fundamental difference, in this respect, between the 
 study of political relations and the study of economic 
 relations, or, again, of religion, of art, of science and philo- 
 sophy, as factors of social life. In each of these cases the 
 student concentrates his attention on one element of human 
 history which can only be partially separated from other 
 components of the whole complex fact of social development. 
 Experience seems to show that this kind of concentration, 
 and consequent partial separation of historical and socio- 
 logical study into special branches, is unavoidable in the 
 division of intellectual labour which the growth of our 
 knowledge renders necessary in a continually increasing 
 degree. I think, therefore, that it must be accepted in the 
 study of Polity no less than in other departments of 
 History and Social Science : though I quite admit that it 
 ought never to be carried so far as to make us forget the 
 influence exercised on government by other social changes 
 for instance, by the development of thought, of knowledge, 
 of morals, of industry. 
 
 In any case the study, at once historical and scientific, 
 of Political Society, and the general science of society of 
 which this study is a more or less separable element, are 
 undoubtedly studies of great interest : and it is possible 
 perhaps even probable that when they have reached a 
 further stage of development they may take the leading 
 place in any rational and systematic method of answering 
 the political questions with which we shall be concerned in 
 the present treatise. At present, however, I do not think 
 that this is the case. 
 
 As has been explained, the primary aim of this book
 
 SCOPE AND METHOD OF POLITICS 
 
 is to set forth in a systematic manner the general notions 
 and principles which we use in ordinary political reasonings. 
 Now, ordinary political reasonings have some practical 
 aim in view : to determine whether either the constitution 
 or the action of government ought to be modified in a 
 certain proposed manner. Hence the primary aim of our 
 study must be similarly practical : we must endeavour to 
 determine what ought to be, so far as the constitution 
 and action of government are concerned, as distinct from 
 what is or has been. And in the systematic reasonings by 
 which we seek to arrive at such practical conclusions I 
 conceive that the historical study of the forms and functions 
 of government can at present only occupy a secondary 
 place. 
 
 For, first, it must be observed that History cannot 
 determine for us the ultimate end and standard of good 
 and bad, right and wrong, in political institutions ; whether 
 we take this to be general happiness, or social wellbeing 
 defined somehow so as to distinguish it from happiness. 
 This ultimate end we cannot get from history ; we bring it 
 with us to the study of history when we judge of the good- 
 ness or badness of the laws and political institutions which 
 history shows us. 
 
 Secondly, supposing that we are agreed on the ultimate 
 end to which our political efforts should be directed and I 
 think the majority of my readers will probably agree in 
 taking it to be general happiness still, the study of past 
 history appears to me only to a very limited extent useful 
 in determining our choice of means for the attainment of 
 the end here and now. 
 
 This is partly on account of the inevitable defects of 
 the study of human history the difficulty of ascertaining 
 past events with sufficient fulness and accuracy to enable 
 us to establish trustworthy generalisations as to their causal 
 relations. But it is still more due to the very characteristic 
 which gives the history of civilised mankind its special 
 interest for the philosopher viz. that it is concerned with 
 that part of the knowable universe in which change most
 
 8 ELEMENTS OF POLITICS CHAP. 
 
 distinctly takes the form of progress : so that each age has 
 its own problems, in the solution of which the assistance 
 that we can obtain from a study of preceding ages can only 
 be of a subordinate kind. Even granting that History 
 scientifically treated may enable us to decide, at least 
 roughly and approximately, how far particular laws and 
 institutions have tended to promote human happiness or 
 social wellbeing in past ages ; we cannot hence legitimately 
 infer, in any direct and cogent way, what structure or 
 mode of action of government is likely to be most con- 
 ducive to happiness here and now. This, indeed, the 
 advocates of what is called the "historical method" have 
 usually maintained with especial emphasis : they have been 
 especially anxious to urge that the value of all political 
 institutions is " relative," and that those best adapted to 
 promote social wellbeing in any given age and country may 
 be in the highest degree unsuited to different circumstances 
 and a different stage in the development of human society. 
 They have, it is true, chiefly urged this " relativity " as 
 a reason against applying our current political maxims in 
 judging the events and institutions of the past: but their 
 arguments seem equally valid against attempts to base 
 present maxims of policy on inductions from past history. 
 
 It may be said, however, that so far as we have ascer- 
 tained the true laws of development of political societies, 
 we shall know what government is to be and do in the 
 future, no less than what it has been and done in the past. 
 I grant that a scientific study of political history must, in 
 virtue of its scientific character, aim at prevision ; indeed 
 it has hardly earned a title to the name of science, until it 
 can supply some rational forecast of the future. But any 
 such sociological forecasts in the present stage of develop- 
 ment of political science can only be vague and general, 
 if they are kept within the limits of caution and sobriety ; 
 and any guidance that may be derived from such forecasts 
 for the problems of practical politics must be mainly 
 negative and limitative, and can hardly amount to positive 
 direction. It may be useful in preventing us from wasting
 
 SCOPE AND METHOD OF POLITICS 
 
 our efforts in the attempt to realise impracticable ideals : it 
 may show us to some extent, with some degree of prob- 
 ability, which of the characteristics of our own political 
 society will increase in importance as the years go on, and 
 which will decrease : it may thus lay down for us certain 
 lines within which our choice of governmental institutions 
 and laws is necessarily restricted : but it can hardly, I con- 
 ceive, instruct us how to choose within these lines. For 
 instance, suppose that we know in this way I am far from 
 affirming that we do know that in the course of one or 
 two centuries all nations now civilised will have adopted 
 some form of democracy : this will render it useless to 
 inquire what kind of aristocracy would be best adapted for 
 any of these nations, but will not materially assist us in 
 determining the particular form of democracy most likely 
 to be conducive to its wellbeing. It would no doubt be 
 a mistake to disregard such probable forecasts : and they 
 have, in fact, been kept in view throughout the composition 
 of the present treatise ; and I have considered carefully 
 how far they may reasonably be held to modify conclusions 
 otherwise arrived at. I have not, indeed, found that the 
 extent of this modifying influence has been great : but had 
 it been greater, it could, I think, only have been of the 
 limitative kind above described. Grant that we know all 
 that the most confident of scientific historians would claim 
 to know of the irresistible tendencies of social and political 
 development ; the question still remains, What, within the 
 limits set by these tendencies, is the best mode of organising 
 government and directing its action ? And the more we 
 believe in a law of development tending to make the future 
 specifically unlike the past, the less direct assistance can be 
 expected from our knowledge of what the structure and 
 functions of government have been, in determining what 
 they ought to be. 
 
 I do not mean to imply that the student of the Art of 
 Government can derive no positive assistance at all from 
 history. Notwithstanding the continual process of change 
 and development through which political societies pass, the
 
 ELEMENTS OF POLITICS 
 
 fundamental aims and conditions of the work of government 
 do not change so quickly and completely from age to age 
 that we can learn nothing as to the right methods of working 
 from the action of states and statesmen in the past. And 
 the same may be said of the qualities of human intellect 
 and feeling, on which the determination of the appropriate 
 structure of government will properly depend. It would 
 therefore be rash to affirm that suggestions of practical 
 value may not be derived, in particular cases, from the 
 study of problems analogous to our own which have been 
 dealt with by statesmen in other ages and countries. But 
 it will, I think, be generally admitted, with regard to all 
 but very recent history, that any practical inferences that 
 may be drawn from such a study must generally be of a 
 very indirect and uncertain kind : that we can never safely 
 reason " Because such a law, such a form or institution of 
 government, such a measure or line of policy, was suitable 
 in Greece or Home or any mediaeval country, or even in 
 any European state of the sixteenth, seventeenth, or 
 eighteenth century, therefore it would be suitable here 
 and now." 
 
 The case is different when we turn to the recent history 
 of States on a level in civilisation with our own. Here, 
 no doubt, we find that statesmen and thinkers are often 
 grappling with practical problems closely similar in their 
 nature and conditions to those with which we have to deal. 
 Still, even these modern facts, for a student of the general 
 principles and method of practical politics, appear to be 
 chiefly valuable in the way of suggestion, or as a test of 
 results otherwise obtained ; the particular instances afforded 
 of success or failure of certain political institutions or modes 
 of governmental action being rarely in themselves sufficient 
 to justify confident general inductions as to the expediency 
 of adopting such institutions or modes of action in modern 
 states. It is rather when we pass from the general theory 
 to a particular application of it, that the study of these 
 analogous cases, if conducted with a due regard to differences 
 as well as resemblances, becomes of great importance.
 
 SCOPE AND METHOD OF POLITICS 
 
 3. On the whole, then, I think that, for the purpose 
 of general political reasoning that has a practical aim, 
 induction from the political experiences which history 
 records can only be employed in a secondary way. 1 
 But if this be so, by what other rational method can 
 we deal with the questions of Practical Politics ? The 
 method commonly adopted in political reasoning that 
 appeals to general principles is the following : we assume 
 certain general characteristics of social man characteristics 
 belonging not to mankind universally, but to civilised man 
 in the most advanced stage of his development : and we 
 consider what laws and institutions are likely to conduce 
 most to the welfare of an aggregate of such beings living 
 in social relations. The present work is an attempt to 
 render this method more systematic and precise : the 
 practical principles defined and applied in it are accord- 
 ingly based on certain general assumptions as to human 
 motives and tendencies, which are derived primarily from 
 the ordinary experience of civilised life, though they find 
 adequate confirmation in the facts of the current and 
 recent history of our own and other civilised countries. 
 These propositions, it should be observed, are not put 
 forward as exactly or universally true, even of contemporary 
 civilised man ; but only as sufficiently near the truth for 
 practical purposes. As instances of these fundamental 
 assumptions, I may give what Bentham 2 lays down as 
 " propositions upon which the good of Equality is founded," 
 viz. that, generally speaking, " each portion of wealth has as 
 corresponding to it a portion " or, more exactly, a " certain 
 
 1 Such, I may observe, is the method actually employed, not only by Ben- 
 tham and James Mill, but even by J. S. Mill, in his treatise on Representative 
 Government notwithstanding the views expressed in his Logic of the Moral 
 Sciences to which I have above referred. I have no right to suggest that Mill 
 had consciously abandoned the general conception of the relation of Politics 
 to History which we find in his Logic : but when he came to treat with a view 
 to'practical conclusions the question of the best form of Government, he cer- 
 tainly dealt with it by a method not primarily historical : a method in which 
 history seems to be only used either to confirm practical conclusions otherwise 
 arrived at, or to suggest the limits of their applieabilit}-. 
 
 2 Principles of the Civil Code, Part i. ch. vi.
 
 12 ELEMENTS OF POLITICS CHAP. 
 
 chance " of happiness : that " of two individuals, with 
 equal fortunes, he that has the most wealth has the greatest 
 chance of happiness " ; but that " the excess in happiness 
 of the richer will not be so great as the excess of his 
 wealth." Of these propositions the last, as Bentham says, 
 is not likely to be disputed : but the first two, if universally 
 stated, any one with any wide experience of human beings 
 will probably be disposed to contradict ; it is easy to find 
 both persons to whom it has manifestly been a misfortune 
 to have been made suddenly richer, and persons who have 
 not appreciably lost happiness by having become suddenly 
 poorer. But it remains true that other things being 
 equal an overwhelming majority of sensible and reason- 
 able persons would always prefer a larger income to a 
 smaller, both for themselves and for those whom they 
 desire to benefit, and all that Bentham is concerned to 
 maintain all that he requires to assume for the establish- 
 ment of general rules of legislation is that this great 
 majority of sensible persons would be right in the great 
 majority of cases. 
 
 As another of these fundamental assumptions, let us take 
 a proposition of J. S. Mill's, 1 viz. that " each person is the 
 only safe guardian of his own rights and interests." This 
 proposition, of course, is only intended by Mill to apply to 
 sane adults and, to avoid controversy, I will for the pre- 
 sent suppose (what, I hardly need say, is not Mill's view) 
 that it is only applicable to adult males: since it is not 
 clear that the common sense of mankind considers women 
 generally to be the safest guardians of their own pecuniary 
 interests. Even among male adults it is not difficult to 
 find instances of persons not insane, who are so recklessly 
 passionate or self-indulgent, or so easily deluded, that a 
 wise parent or friend would prefer to place any gift or 
 bequest intended for their benefit in the hands of trustees. 
 Still it remains broadly and generally true that this pro- 
 position is, as Mill says, an " elementary maxim of prudence " 
 on which men commonly act without hesitation in their 
 1 Representative Government, ch. iii.
 
 I SCOPE AND METHOD OF POLITICS 13 
 
 private affairs : and it is primarily on this ground of 
 common experience that he maintains the validity of this 
 maxim as a principle for the construction of the " ideally 
 best polity " ; though he appeals for confirmation to the 
 specifically 'political experience which the history of op- 
 pressed classes in different ages and countries abundantly 
 furnishes. 
 
 These and other fundamental assumptions of deductive 
 politics we shall have to discuss more fully in subsequent 
 chapters : in which I shall consider carefully the limitations 
 and exceptions to which they ought to be taken as subject. 
 Here I will only say that, while it is a grave and not 
 uncommon error to treat generalisations as to human 
 conduct which are only approximately true as if they were 
 universally and absolutely true, it is a no less serious mis- 
 take and perhaps it is at the present time the more 
 prevalent and dangerous mistake to throw a rule aside as 
 valueless, or treat it as having only a vague and indefinite 
 validity, because we find it subject to important limitations 
 and exceptions. Whereas the truth is, that in most cases 
 our knowledge, in any real and important sense, of a general 
 truth relating to human action and its motives and effects, 
 develops along with our knowledge of its limitations 
 and exceptions : until we have a definite and clear appre- 
 hension of the latter, we cannot have a firm grasp of the 
 former. This will, I think, be abundantly illustrated in 
 the exposition of political principles that follows : I have 
 said enough for the present to illustrate the general nature, 
 and to give a prima facie justification, of the method which 
 I shall be mainly engaged in developing. For myself, 
 while I regard this method as useful and even indispen- 
 sable, I quite admit the importance of bearing constantly in 
 mind its inevitable limitations and imperfections. It must 
 never be forgotten that no particular nation is composed of 
 individuals having only the few simple and general char- 
 acteristics which are all we can include in our conception 
 of the civilised man to whom our abstract political reason- 
 ing relates. An actual nation consists of persons of whom
 
 i 4 ELEMENTS OF POLITICS CHAP. 
 
 the predominant number have, besides the general char- 
 acteristics just mentioned, a certain vaguely defined complex 
 of particular characteristics which we call the "national 
 character " of Englishmen, Frenchmen, etc. ; among which 
 sentiments and habits of thought and action, formed by 
 the previous history of the nation, must always occupy a 
 prominent place : and a consideration of these particular 
 characteristics may properly modify to an important ex- 
 tent the conclusions arrived at by our general reasoning. 
 Thus I may conclude, from the point of view of abstract 
 theory, that by taking twelve plain men and shutting them 
 up in a room till they are unanimous, I am likely to get 
 but a blunt and clumsy instrument for the administration 
 of criminal justice : but this defect may be more than com- 
 pensated by the peculiar confidence placed in this instrument 
 by a people whom the unbroken tradition of centuries has 
 taught to regard trial by jury as the " palladium of its 
 liberties." So again, no one constructing a legislative organ, 
 composed of two chambers, for a newly-founded community 
 of modern civilised men, would be likely to propose that 
 membership of the second or revising chamber should be 
 handed down from father to son, like a piece of private 
 property : but, in a country that has long been led by 
 a hereditary aristocracy, a chamber so appointed may have 
 a valuable power of resistance to dangerous popular impulses 
 which it may be difficult to obtain by any other mode of 
 appointment. 
 
 These are questions which we shall afterwards have to 
 discuss : I only refer to them now by way of illustration ; 
 and in order to warn the reader that, in my opinion, no 
 questions of this kind regarded as practical problems pre- 
 sented for solution to a particular nation at a particular 
 time can be absolutely and finally determined by the 
 method which I shall try to work out in subsequent 
 chapters. At the same time, this general treatment of 
 the subject cannot fail, in my opinion, to be useful, provided 
 that we are not misled into regarding it as complete 
 and final ; useful, not merely as a preparatory exercise,
 
 I SCOPE AND METHOD OF POLITICS 15 
 
 but because considerations of the general kind with which 
 we shall be concerned must always form an important part 
 of the discussion of any question of practical politics, though 
 they have to be combined with and to a varying extent 
 overruled by considerations of a more special kind. 1 
 
 4. The study of Politics, then, as I shall treat it, is 
 concerned primarily with constructing, on the basis of 
 certain psychological premises, the system of relations 
 which ought to be established among the persons governing, 
 and between them and the governed, in a society composed 
 of civilised men, as we know them. I shall refer not unfre- 
 quently to actual laws and political institutions : but chiefly 
 by way of illustration, or to give concrete particularity to 
 conclusions which would otherwise remain general and 
 vague. The inquiry has two main divisions, (1) one relat- 
 ing to the Work or Functions of Government, and (2) the 
 other to its Structure or Constitution : along with the 
 latter I have thought it convenient to include the general 
 inquiry into the relations, moral as well as legal, that ought 
 to exist between government and the governed, besides such 
 relations as are already defined in the determination of 
 governmental functions ; and also an inquiry into the 
 relation of the State to voluntary associations of political 
 importance. In deciding which of the two main divisions 
 is to be taken first, we seem at first sight to be in a 
 dilemma. On the one hand it may be fairly said that 
 the first, in logical order of discussion, ought clearly to 
 precede the second ; for in investigating the best constitu- 
 
 1 The least reflection will show that in ordinary political discussions 
 reference is continually made to propositions laid down as true of civilised 
 man generally, not merely of the English species of civilised man. Why is 
 strong resistance made to legislation interfering with freedom of contract ? 
 Because it is thought that men in general are likely to know their own 
 interest better than any government can know it for them ; or that they are 
 likely to gain more in vigour of intellect and character by being left to 
 manage their own affairs than they are likely to lose materially through 
 foolish contracts. Why is it thought expedient to increase the number of 
 peasant proprietors ? Because it is thought that men in general will labour 
 more energetically if they receive the whole advantage resulting from their 
 labour. And, similarly, in other cases of current interest.
 
 1 6 ELEMENTS OF POLITICS CHAI>. 
 
 tion we are considering the fitness of Government as an 
 instrument to do a particular work : and in such a con- 
 sideration we ought to get as clear an idea as possible of 
 the work that has to be done before we proceed to consider 
 how the instrument ought to be constituted. On the other 
 hand it may be urged with no less plausibility that in the 
 matter of government, as in private affairs, we cannot 
 decide what it is prudent to attempt till we know what 
 means we have at our disposal for effecting our ends. And 
 in truth neither department of the subject can be entirely 
 left out of view in studying the other. But on the whole 
 it seems the best solution of the difficulty to begin by 
 considering what government ought to do ; bearing in mind 
 that so far as our conclusions on this point go beyond our 
 experience of what governments actually have done they 
 must not be regarded as final until we have considered 
 the prospect of obtaining a government qualified to 
 carry out the work which we have judged to be desirable 
 if possible. I propose, therefore, to begin by consider- 
 ing the Work of Government. Here, again, doubt may be 
 raised as to whether we should consider first Internal or 
 External Functions i.e. the action of government on the 
 members of the community governed, or its action in 
 relation to other communities and individuals. It is un- 
 deniable that, in early periods of human history, the most 
 pressing need of government is created by war, and that, in 
 many cases, a predominant influence has been exercised on 
 its development by this need. Still, in the consideration of 
 civilised polity, it would seem that the Internal Functions 
 of Government should properly occupy our attention first, 
 as being more essentially implied in our general notion of 
 political society ; since we can conceive indeed many have 
 looked forward to the union of the human race under one 
 " parliament of man " ; or, again, we can conceive a political 
 society so much separated from others by physical barriers 
 as to have no external relations of much importance. 
 
 Further, it should be observed that the External Action 
 of Government usually involves Internal Action, often of
 
 I SCOPE AND METHOD OF POLITICS 17 
 
 a very important kind, Thus, though the primary object 
 for which an army is raised is usually to fight a foreign 
 enemy, still, in the work of raising and disciplining such an 
 army in modern states, an important and peculiar exercise 
 of governmental functions in relation to the governed is 
 normally required. 
 
 I shall begin, then, with the Internal Functions of 
 Government. Here the establishment and administration of 
 Law is admittedly the most important : and to this accord- 
 ingly our attention will be first directed. Hume indeed 
 asserts, in a well-known essay, that " we are to look upon all 
 the vast apparatus of our government as having ultimately 
 no other object or purpose but the distribution of justice, 
 or, in other words, the support of the twelve judges. Kings 
 and parliaments, fleets and armies, officers of the court and 
 revenue, ambassadors, ministers and privy-councillors, are 
 all subordinate in their end to this part of administration." l 
 There is some exaggeration in this statement ; since (e.g.) 
 the objection that a French province has to being conquered 
 and annexed by Germany is not due mainly to a fear of a 
 bad administration of justice by German judges, but more 
 to the national sentiment which makes it desire to remain 
 a part of the French state. Still Hume's view is so far 
 true as to make it proper for us, in considering the work 
 that government has to do, to direct our attention first to 
 the establishment and administration of a good system of 
 Law. But before we proceed to the consideration of what 
 Law and Government ought to be, it is desirable to under- 
 take a preliminary inquiry into the characteristics that are 
 essentially implied in the commonly received notions of 
 Government and Law. To this we will proceed in the next 
 chapter. 
 
 1 Hume, Moral, Political, and Literary Essays, Part I. Essay V.
 
 CHAPTEK II 
 
 THE FUNDAMENTAL CONCEPTIONS OF POLITICS 
 
 1. AN eminent writer, 1 who treats of the "Logic of Politics," 
 distinguishes a " preliminary branch " of the science of 
 Politics, which he regards as an essential preparation for a 
 practical no less than for a purely theoretical study of the 
 subject, though it does not itself include an answer to any 
 practical questions. This preliminary study, he explains, 
 deals with the structure and functions of government not as 
 they ought to be, but as they must be ; that is, it teaches 
 what is essentially involved in the idea of political govern- 
 ment, and explains the necessary instruments and methods 
 of government laws and their sanctions, executive com- 
 mands and judicial decisions, the establishment of rights and 
 obligations, etc. Its aim is to make clear by discussion and 
 definition these and other general notions that enter into our 
 complex conception of political society ; but it does not 
 inquire into the operation and tendency of any particular 
 kinds of laws or executive commands, or of any particular 
 organisation of the judicature or other governmental in- 
 stitutions ; nor does it urge the preference of any one law 
 or institution to any other. " It explains the meaning of 
 monarchy, aristocracy, democracy, but does not teach which is 
 the best form. It shows what is the nature of punishment, 
 but does not say which punishments are the most efficacious. 
 It explains the nature of a dependency, without arguing the 
 question should colonies have a separate government ? " 
 
 1 Mr. Bain, in his Logic ; Induction, ch. viii. 
 18
 
 CH. II THE FUNDAMENTAL CONCEPTIONS OF POLITICS 19 
 
 I agree with Mr. Bain in recognising the value of the 
 study thus marked off as preliminary. 1 To obtain clear and 
 precise definitions of leading terms is an important, and not 
 altogether easy, achievement in all departments of scientific 
 inquiry : but it is specially important in our present subject. 
 But in most cases it seems to me most convenient, in such 
 a treatise as the present, not to separate our discussion of 
 the meaning of essential terms from our discussion of the 
 practical questions in which the terms are used. I therefore 
 propose, generally, to defer examining the definitions of such 
 terms as " property " and " contract " till we come to consider 
 what rights of property and of contract should be maintained 
 in a well-ordered society : and similarly I shall not attempt 
 to deal with the difficulties of determining precisely the 
 separation between " legislative " and " executive " functions, 
 until we are about to inquire how the organs exercising 
 these functions should be constituted. But some preliminary 
 discussion of the fundamental conceptions " Government," 
 " Law," " Right," " Obligation " is almost indispensable, 
 before we begin to consider the general principles on which 
 government ought to act in establishing and maintaining 
 legal rights among the governed, and compelling the 
 performance of their legal obligations : and in the course of 
 this discussion a provisional view of the characteristics and 
 relations of the leading internal functions of government 
 will naturally be given. 
 
 2. First, for clearness, we will confine our attention to 
 the political conditions of an orderly modern state. Here 
 reflection shows us that the notions of Government and 
 Law are closely connected. The essential characteristic of 
 Government, as we commonly conceive it, is that it gives 
 commands, general and particular, to members of the com- 
 munity governed : meaning by a " command " a direction 
 
 1 This preliminary branch, if worked out in complete separation from the 
 practical inquiries from which Mr. Bain distinguishes it, might be called 
 "Formal" as contrasted with "Material" Politics; it would include, as a 
 portion, the study of general jurisprudence, as now commonly distinguished 
 from the theory of legislation.
 
 20 ELEMENTS OF POLITICS CHAP. 
 
 to do, or abstain from doing, a certain act or class of 
 acts, combined with an announcement, express or tacit, of 
 some penalty to be inflicted on those who do not conform to 
 such direction. A subordinate organ of Government is one 
 whose power of issuing such commands is limited by the 
 commands of a superior organ : a Supreme Government is 
 one that is not so limited. On the other hand, the essential 
 characteristic of the Laws of any community is that they 
 are general directions as to the conduct of members of the 
 community, for disobedience to which a penalty l of some 
 kind will normally be inflicted by the authority of Govern- 
 ment. This penalty is by no means the only motive 
 which prompts ordinary citizens to obey the laws ; nor is 
 it necessarily the chief motive ; but it is or is believed to 
 be generally indispensable as an inducement to secure 
 adequate conformity to the law. In order, then, to the 
 complete establishment of any proposed law in a community, 
 it is necessary not only that the law should be definitely 
 determined and declared, but also that an adequate penalty 
 should be actually inflicted on any person who transgresses 
 it, whenever, after impartial investigation, the fact of the 
 transgression and the degree of its gravity have been duly 
 ascertained. Now it is clear that the functions (1) of laying 
 down the law, and (2) of investigating and deciding cases of 
 alleged infringement, may be separated from each other ; and 
 also (3) from the actual infliction of the penalty and the 
 performance of whatever other acts are required for the 
 effectual execution of the laws such as the organisation 
 and direction of the military force of the community to 
 crush any open resistance to its government. These three 
 
 1 The word "penalty" must be here understood in a wide sense : since 
 the penalty may consist only in the enforced payment of damages to a 
 private individual injured by the violation of the rule ; or may be merely 
 negative, and consist in the withdrawal from the law-breaker of some 
 governmental protection of his interests to which he would otherwise have 
 been entitled. In the case, again, of servants of Government, the penalty 
 may be merely reprimand or dismissal. Finally, as we shall see, the penalty 
 ordinarily incurred by subordinate legislative bodies for illegal law-making 
 is merely the annoyance of finding their laws or bye-laws declared invalid.
 
 ii THE FUNDAMENTAL CONCEPTIONS OF POLITICS 21 
 
 functions, then, are those primarily distinguished as " legis- 
 lative," " judicial," and " executive." 
 
 In a subsequent chapter we shall see reasons for assign- 
 ing these functions, in a great measure, to separate organs 
 respectively : and we shall have to consider how to deal with 
 any disagreement and conflict that may arise among these 
 organs. But for the present, when we are considering the work 
 that has to be done rather than the method of doing it, we may 
 assume generally that the different organs of government 
 legislative, executive, and judicial, superior and subordinate, 
 central and local will all co-operate harmoniously : so that 
 we may speak of any or all briefly as " the government." 
 
 We may say, then, that in the modern state the notion 
 of Law in the sense in which we are now concerned with it 
 involves the notion of Government, and vice versa. But this 
 mutual implication of the two notions has only been reached 
 slowly and gradually in the development of political society. 
 Historically, Law first appears in the form of Custom 
 existing from time immemorial, and conceived by rulers and 
 ruled to be equally binding on both, obedience to it being 
 mainly caused by habit, and by fear of general disapproval 
 and its consequences, rather than by any special fear of 
 governmental penalties. And for a long time after the 
 intervention of government to enforce law has become 
 regular and fundamentally important, the greater part of 
 the changes actually made in law are not made in the way 
 of express and conscious legislation. In consequence of this, 
 it would be a mistake to suppose that the whole body of 
 laws in force, even in any modern State, has actually been 
 laid down by a legislative organ recognised as such. In 
 some countries, indeed, where Law has been codified, this 
 would be formally true ; but in a great measure only formally, 
 as the substance of a new code usually consists, in the main, 
 of laws previously in force. But in such a country as 
 England the supposition would not be even formally true. 
 For a great part of our Law consists of old customary rules 
 modified and added to by the decisions of judges ; who 
 either (1) while professedly interpreting pre-existing rules,
 
 22 ELEMENTS OF POLITICS CHAP. 
 
 have extended, restricted, or in some way further defined 
 them ; or (2) have overruled them in accordance with what 
 they regarded as higher principles of justice or equity. 1 And 
 it is to be noted that this conception of a higher law valid 
 independently of human legislation, lingered till a very late 
 stage of our civilisation. Thus we find that Blackstone, 
 while defining Law as " a rule of civil conduct prescribed by 
 the supreme power in a state," still recognises a " Law of 
 Nature " which claims our obedience without being so 
 prescribed, and is indeed " superior in obligation to any 
 other " law. In virtue of this Law of Nature, Blackstone 
 declares, men have " natural rights, such as life and liberty," 
 which " receive no additional strength when declared by the 
 municipal laws to be inviolable " ; which " no human legisla- 
 ture has power to abridge or destroy, unless the owner shall 
 himself commit some act that amounts to a forfeiture." 
 Such language was by no means peculiar to Blackstone ; a 
 doctrine of this kind was prevalent among jurists of the 
 eighteenth century. But it is now, on the whole, antiquated : 
 and, indeed, it seems to involve a grave and dangerous con- 
 fusion between (1) Law as it is, here and now, in any given 
 community, and (2) Law as it ought to be, the ideal by 
 which Positive Law ought to be judged and, if possible, 
 rectified. Such an ideal, if it is a true ideal, must, of course, 
 coincide with or be based upon " those eternal and immutable 
 laws of good and evil, to which the Creator Himself conforms, 
 and which He has enabled human reason to discover,"- 
 which Blackstone calls " Law of Nature," so far as any 
 such eternal principles are held to be discoverable. But it 
 would be a serious error for any individual Englishman to 
 suppose that this ideal, as conceived by him, was actually 
 established as law in England at the present day, so far as 
 it diverges from the laws laid down by Parliament, or defined 
 by a series of judicial decisions : and any language which 
 encourages a man to claim, as valid here and now, rights not 
 
 1 The principles have often actually been derived from some foreign 
 system of law, but their application has been justified not by their source, 
 but by their intrinsic superiority.
 
 II THE FUNDAMENTAL CONCEPTIONS OF POLITICS 23 
 
 secured by the actually established law of his country, is 
 dangerously revolutionary. 
 
 Is then it may be asked the power of government 
 to introduce new laws theoretically unlimited in a modern 
 state ? The answer to this question requires careful con- 
 sideration. First, we have to observe that Law, in the 
 political sense in which we are now concerned with it 
 the law of a state, is only one species of a genus. 
 In a wider sense the term " law " may be properly applied 
 to any general rule which directs persons to do or 
 abstain from doing a class of acts, and for disobedience 
 to which some penalty may reasonably be expected by 
 the persons disobeying. Thus when we speak of the " laws 
 of health " we mean a set of rules of conduct, the breach 
 of which is held to entail an appreciably increased chance 
 of disease. So again, the rules of morality, regarded as 
 the expression of God's will, are, by all who believe in a 
 moral government of the world, properly conceived as the 
 " Law of God." It is to be observed, however, that since 
 there are usually considerable variations of moral opinion 
 and sentiments within the limits of the same modern com- 
 munity the true or Divine Code of morality, as conceived 
 by any reflective individual, may diverge importantly from 
 the body of rules supported by the prevalent opinion of his 
 community at any given time, which for distinction sake 
 may be called the " Positive morality " of the community. 
 Both Positive morality, and Ideal morality as conceived by 
 any individual may come into conflict with the law of the 
 state : it is a familiar experience that a law actually in 
 force is condemned as unjust and oppressive or otherwise 
 immoral by a minority of members of the community ; 
 and even when the opinion of this minority becomes the 
 prevalent opinion, the law does not therefore at once cease 
 to exist though, in a state under popular government, its 
 days are then numbered. When such conflict occurs, it is 
 in most cases admittedly the moral duty of an individual 
 to obey the laws of his state even when they are bad, and 
 when, if he had supreme legislative power, it would be his
 
 ELEMENTS OF POLITICS 
 
 moral duty to alter them : at the same time it is also gener- 
 ally recognised that Positive Law may sometimes command 
 what morality and religion forbid, and that in such cases 
 there is a moral obligation to disobey the law. Conse- 
 quently as a modern government has only a very limited 
 power of modifying the moral opinions of the governed 
 its legislative power finds in positive morality two kinds of 
 limits, one more completely effectual, but wider and less 
 practically operative, the other narrower but more elastic. 
 That is, there are among the conceivable commands of 
 government some which would certainly be disobeyed so 
 widely that they could not be enforced ; while there are 
 others which would probably be obeyed by the bulk of the 
 community, so long as they were not revoked, but would be 
 so strongly disapproved that government would have a power- 
 ful inducement to revoke them. The former limit may be 
 assumed to exist in every political society ; but it is usually 
 impossible to determine exactly where it lies, since govern- 
 ment is ordinarily restrained from approaching it by its 
 desire to avoid popular disapproval of the less intense kind : 
 though the effectiveness of this narrower and more elastic 
 limit varies very much in degree, with differences in the forms 
 of government and in the extent to which active political 
 interests are developed among the members of the society. 
 
 The power of government, then, in a modern state is 
 limited not only by its own morality or by the law of God, 
 so far as it itself recognises principles of religious duty, 
 but by the prevalent moral opinion of the community ; 
 especially by opinions, resting on custom and habit, as to the 
 proper nature and limits of governmental coercion. But 
 can we ever properly say that the power of government is 
 limited by Positive Law ? 
 
 This question has been answered in the negative by 
 leading English publicists : l and, as we shall see, there is 
 usually some sense in which the negative answer is true ; 
 but it is sometimes a very peculiar sense, requiring to be 
 carefully explained and limited. 
 
 1 See especially Austin's Jurisprudence, vol. i. ch. vi.
 
 ii THE FUNDAMENTAL CONCEPTIONS OF POLITICS 25 
 
 At first sight it may seem that a supreme government 
 cannot be subject to strictly legal restraints; since the 
 effectual restraint of law lies in the fear of some penalty 
 which government will inflict, and no supreme government 
 can be alarmed by the dread of its own penalties. And 
 this is obviously true in the case of simple monarchy, or 
 any form of government where the supreme rulers have a 
 lifelong tenure. So far as such rulers are actually re- 
 strained by constitutional rules commonly regarded as 
 laws which purport to limit their legislative or other 
 powers, it is not a fear of strictly legal penalties that 
 restrains them ; it is rather a fear of disobedience and 
 resistance rendered peculiarly formidable by the fact that 
 the moral sentiment of Order and Law-observance which 
 ordinarily co-operates with the fear of legal penalties in 
 producing obedience to government will be at least partly 
 on the side of those who disobey and resist a government 
 that is breaking recognised constitutional rules. 
 
 If, however, supreme rulers only hold power for a limited 
 time, it is quite conceivable that, when they have laid down 
 their power, they may suffer strictly legal punishment, 
 inflicted by their successors, for unconstitutional legislation. 
 But though this is conceivable, I know no modern con- 
 stitution which provides for this kind of punishment of 
 persons invested with legislative power who have made 
 unconstitutional laws. In fact, so long as the legislative 
 and executive organs of a supreme government co-operate 
 harmoniously, and the judicial organ applies unquestioningly 
 the law laid down by the legislature, the restraint placed 
 on governmental action by constitutional rules alone apart 
 from prevalent opinion, which may in a particular case be 
 opposed to some constitutional rule is nowhere greater than 
 the corresponding restraint in the case of simple monarchy : 
 and it may easily be in practice less, since a popularly elected 
 organ of government, receiving the manifest support of the 
 majority that elected it, is not unlikely to be bolder than a 
 monarch in defying a constitutional restraint. 
 
 The case is different in such a constitution as that of
 
 26 ELEMENTS OF POLITICS CHAP. 
 
 the United States of North America ; where the judicial 
 organ, being separate from the legislature and independently 
 constituted, has normally the function of deciding whether 
 the laws made by the latter are consistent with the funda- 
 mental laws of the constitution. No one doubts that in 
 this case the legislature is under strictly legal restraints. It 
 is true that the legislators have no other penalty to fear- 
 beyond the censure of public opinion except the annoy- 
 ance caused by wasted labour. But this is ordinarily the 
 only judicial penalty inflicted on subordinate bodies to 
 which a closely limited legislative power has been granted 
 by a superior legislature : thus in England a railway com- 
 pany 1 is judicially restrained from making bye- laws beyond 
 the limits of its authority, only by the fear that such bye- 
 laws will be declared invalid by the judges if any attempt 
 be made to enforce them. If then, in such a constitution 
 as that of the United States, there were any fundamental 
 laws laid down as unalterable, it could not be denied that 
 the highest legislative organ in such a constitution was 
 under strictly legal restraints, so long, at least, as the 
 independence of the Supreme Court of Judicature was 
 maintained. But in fact no modern state has such a 
 constitution : every modern constitution contains some 
 provision for altering it, from which no rule that it 
 contains is exempted. For instance, in the constitution 
 of the United States a provision for alteration, extending 
 to all the clauses that circumscribe the legislative power 
 of Congress, is made as follows : 
 
 " The Congress, whenever two-thirds of both Houses 
 shall deem it necessary, shall propose amendments to this 
 constitution, or, on the application of the Legislatures of 
 two-thirds of the several States, shall call a convention 
 proposing amendments, which in either case shall be valid 
 to all intents and purposes, as a part of this constitution, 
 when ratified by the Legislatures of three-fourths of the 
 several States, or by conventions in three-fourths thereof, as 
 
 1 The bye-laws of an English railway company have to be approved by the 
 TJoard of Trade : but the restraint thus exercised is not strictly a judicial restraint.
 
 it THE FUNDAMENTAL CONCEPTIONS OF POLITICS 27 
 
 the one or the other mode of ratification may be proposed 
 by the Congress." 
 
 Here, then, a fresh ground is afforded for those who argue 
 that a supreme government cannot be subject to legal 
 restraint ; and this ground is actually taken by Austin and 
 others. They admit that in the United States the legisla- 
 tive power of Congress is strictly limited by law that 
 (e.g.} Congress is legally restrained from making an " ex post 
 facto law" by a clause in the constitution forbidding it. 
 But, they argue, the complex body consisting of Congress 
 and the Legislatures of three-fourths of the separate states l 
 provided these Legislatures are all agreed is not similarly 
 limited. This complex body can constitutionally rescind 
 the clauses prohibiting ex post facto laws, and every other 
 clause of the constitution, and make, or authorise the 
 making of, any law that it pleases : its power is therefore 
 legally unlimited. There can be no doubt that this con- 
 tention is true : the only question can be whether this 
 complex body is properly called the " sovereign " or " supreme 
 government " of the United States, Congress being only 
 allowed the title of a subordinate legislature. We need 
 not decide a merely verbal issue : but it is important to note 
 that, if the word " government " is so used, it is used in a 
 sense materially different from its ordinary meaning. For 
 ordinarily we conceive an organ of government to exercise its 
 functions regularly, at comparatively short intervals : for 
 instance, while historians regard the English House of 
 Commons as an organ of government in England during 
 the later Middle Ages, they do not commonly treat the 
 States-General in France as an organ of government during 
 the same period, because it only came into existence irregu- 
 larly, at intervals of several years. But similarly, the 
 complex body that has unlimited legislative power in the 
 United States does not act at all for long periods ; during a 
 period of more than sixty years, from 25th September 
 
 1 I omit the complication introduced by the alternative method of 
 summoning conventions ; since it is in the power of Congress not to adopt 
 this method.
 
 28 ELEMENTS OF POLITICS 
 
 1804 to 1st February 1865, this unlimited sovereign of 
 the United States remained completely inactive. Surely 
 it strains language to say that during these sixty years 
 citizens of the United States " habitually obeyed " this 
 inert composite entity ? 
 
 If it be replied that this complex body possessed power 
 legally unlimited during the period above mentioned, though 
 it did not exercise it, the answer again must be that the 
 statement is true in a sense, but misleading if made 
 without qualification. It is true that it might without 
 illegality have altered every rule in the constitution : but 
 the statement ignores the fact that it was the legally 
 determined structure of the body in question the difficulty 
 of bringing about the required majority of two-thirds in 
 both Houses of Congress, and the required agreement of the 
 prescribed number of legislatures which practically pre- 
 vented action of this or any other kind. It seems truer to 
 say that in this and similar cases there is an actual organ 
 of government whose commands are habitually obeyed, and 
 a possible organ of government whose power is legally 
 unlimited : but that the two do not coincide, and that the 
 latter may at any given time be incapable of coming into 
 operation at all, owing to the balanced state of opinion. 
 
 In the case of England the difficulties just explained 
 do not arise : since the ordinary process of legislation 
 is also the process by which the Constitution is changed. 
 We can say with indisputable truth that there are no legal 
 limits to the authority of Parliament in England : 1 in 
 endeavouring to ascertain what the law of England 
 is, we never ask what Parliament has authority to do, 
 but only what it has done. But a new difficulty arises 
 
 1 It may be observed that the legal view of the omnipotence of Parlia- 
 ment, now generally accepted, was not completely reached till a compara- 
 tively late period of English history : even so late as the eighteenth century 
 we find not merely in the vague generalities of the writers of law-books, 
 but even in the more particular dicta of judges the recognition of legal 
 principles limiting the legislative power of Parliament. Thus Holt affirms 
 that " if an Act of Parliament should ordain that the same person should be 
 party and judge, it would be a void Act of Parliament."
 
 II THE FUNDAMENTAL CONCEPTIONS OF POLITICS 29 
 
 in communities like our own as regards the attribution of 
 sovereignty or supreme power. Are we to say that in 
 England sovereignty is to be attributed to the complex 
 body formed by (1) the Monarch, (2) the House of Lords, 
 and (3) the House of Commons, or ought we to substitute 
 for the third element of the sovereign the constituencies 
 which choose the House of Commons ? l On the one hand, 
 the constituencies in England certainly cannot make laws, 
 nor have they a constitutional right to invalidate laws 
 made by Parliament. No private Englishman will suffer 
 any legal penalty for disobeying a resolution passed by the 
 most decisive majority of the electorate ; and no law-court 
 would admit such a resolution as a valid excuse for disobey- 
 ing a law laid down by Parliament. On the other hand, it 
 may be plausibly maintained that by the power of dismissal 
 when election time comes round the constituencies can keep 
 their representatives in " habitual obedience." 2 
 
 These and other difficulties I shall discuss in subse- 
 quent chapters; 3 but this preliminary discussion has seemed 
 necessary to explain why, while I adopt substantially 
 Austin's conception of the relation of Law to Government, as 
 applied to the civil law of a modern political community in 
 its latest stage, I prefer in stating it to avoid the difficulties 
 of Austin's notion of sovereignty. The question " where 
 supreme power ultimately resides " is one that it is most 
 important to ask with regard to any political society : but 
 it is a question to which, in my opinion, any simple general 
 answer is liable to be misleading, and the discussion of it in 
 the form appropriate to the present treatise will come more 
 fitly after we have considered in detail the proper constitu- 
 tion of the different organs of Government. 
 
 In the first part of our inquiry, then, which relates to 
 
 1 A similar question of course arises in the case of the United States or 
 any state with a constituent body distinct from the ordinary legislature as 
 regards the action of the ordinary legislatures, within the limits faxed by the 
 constitution. 
 
 2 Austin's statements on this point appear to me hopelessly confused and 
 inconsistent. See Appendix A. 
 
 3 See Chap. XXVII., and especially Chap. XXXI.
 
 jo ELEMENTS OF POLITICS CHAP. 
 
 the work of government, it will be enough to assume that 
 the society with which we are concerned includes one or 
 more persons or bodies, who, so far as they agree, possess 
 legislative power circumscribed by no definite limits ; and so 
 may be taken to constitute a supreme legislative organ, 
 whose general rules, defining the rights and obligations of 
 private members of the community, will be habitually obeyed 
 by the bulk of the community. I shall assume that any 
 transgressor of these rules, ascertained to be such by the 
 judicature, will be punished by the executive government, 
 which will be able to bring overwhelming force to crush 
 any openly recalcitrant member. I shall assume that these 
 organs co-operate harmoniously, keeping each to his proper 
 sphere, so that we may habitually speak of them as one 
 Government. And, finally, I shall assume that the Laws 
 with which we are concerned in our theory of legislation 
 are rules which, if they have not actually emanated from 
 the resolutions of the supreme government, may at any rate 
 be regarded as having its approval, being maintained by 
 penalties inflicted by its authority. It is the connection 
 of Law with Government on the one hand and Penalty on 
 the other on which it appears to me important to lay stress 
 understanding the connection in either case to be taken 
 as normal, and approximately universal in a well-ordered 
 community, not as absolutely universal. 1 
 
 3. In the preceding discussion I have spoken of law 
 as determining the (legal) rights and obligations of private 
 members of the community. The terms used in this defini- 
 tion, though sufficiently familiar, require some further ex- 
 planation in order to make their import as clear as possible. 
 
 Let us begin by considering the term " legal obligation." 
 By this we express the relation of a general rule or 
 command, enforced by the authority of government, to the 
 member or members of the community whose civil conduct 
 it is intended to control. The law is conceived as exercising 
 
 1 See Chap. XIII. I may repeat that the word " Penalty " is to be under- 
 stood in a wide sense, to include negative as well as positive penalties, and 
 " damages " as well as punishment proper.
 
 ii THE FUNDAMENTAL CONCEPTIONS OF POLITICS 31 
 
 a certain constraint on the will of such person or persons ; 
 and it is this constraint that the term " obligation " ex- 
 presses. A similar constraint is exercised in the case of 
 " moral obligations " by the conscience of the individual 
 who lies under the obligation, and the moral opinion of the 
 community of which he is a member. 1 
 
 It is not quite so easy to see what is meant by the 
 term " legal right " ; 2 and perhaps the most convenient way 
 of making this clear is to examine the relation of Eights to 
 Obligations according to the ordinary use of both terms. 
 A litftle reflection will show that we cannot conceive Eights of 
 any one individual without corresponding Obligations imposed 
 on others. Thus A's right of property in any material thing 
 necessarily implies obligations imposed on B, C, D, etc., to 
 abstain from interfering with A's use of the thing: similarly 
 any right to services that A may have in consequence of a 
 contract implies that the other party to the contract is under 
 an obligation to render the services : so again, if a child 
 has a right to education, some one is under an obligation to 
 educate it. It is not, however, similarly clear that the 
 imposition of Obligations on one or more individuals always 
 involves the granting of Eights to other persons. Consider 
 (e.g.) the legal obligation on Englishmen to abstain from 
 suicide, vagrancy, or keeping gambling-houses : there do not 
 appear to be in these cases as in those just considered 
 any definite Eights belonging to assignable individuals 
 which are violated if the obligations are not fulfilled. Still, 
 when we reflect on the interest that the community at large 
 has in the observance of the laws in question, it does not 
 seem strained to say that the community has a right to 
 their observance. 
 
 1 The distinction and possible divergence in particulars between what 
 any individual believes to be moral truth, and the moral opinion of his 
 society, must always be borne in mind. 
 
 2 The difficulty of defining "a right" is increased by the fact that while 
 we recognise in ordinary discourse that there are moral as well as legal rights, 
 and that the two kinds of rights are not always coincident, sve still frequently 
 speak of "rights" without clearly distinguishing which of the two we mean. 
 At present I am concerned with legal rights ; but the definition that I pro- 
 pose to give may easily be applied, mutatis mutandis, to moral rights.
 
 32 ELEMENTS OF POLITICS CHAP, n 
 
 Comparing these cases, I arrive at the conclusion that "a 
 right " is really an obligation regarded from a different point 
 of view : i.e. regarded in relation to the person to whom the 
 obligation is intended to be useful. In the case of such 
 rights as the right of property, the rule which binds or 
 obliges the members of the community to abstain from inter- 
 fering with the owner's use of the appropriated thing has at 
 the same time the effect of securing or protecting the owner's 
 freedom of action in respect of the thing in question : and 
 hence some thinkers have conceived a " Eight " as being 
 essentially " secured or protected liberty." But there are 
 other cases to which this definition clearly would not apply : 
 e.g. when a child is said to have a " right to education " there 
 is no liberty secured to the child, but merely an obligation 
 imposed on other persons of rendering it certain positive 
 services. 1 
 
 Accordingly, in forming a definite conception of any 
 right, it is indispensable to ascertain the obligation implied 
 in it, and the persons on whom this obligation is thrown. 
 For instance, in speaking of rules determining the rights of 
 private members of the community, we may imply either 
 obligations imposed on private persons, or obligations im- 
 posed on members of the Government. The distinction 
 thus drawn is important in separating the discussion of 
 the work that Government has to do from the discussion 
 of the methods and instruments by which the work should 
 be done. It will be somewhat further developed in the 
 next chapter. 
 
 1 Some writers hold that a legal right implies that the person who is 
 said to have the right must be able to obtain, by a legal process, redress or 
 punishment for any violation of his right. I agree that such redress or 
 punishment must be somehow obtainable otherwise the rule professing to 
 determine the right would not deserve the name of a law : but it does not 
 seem to me necessary that the individual whose right is violated should 
 himself have the right of suing or prosecuting the violator : it seems to me 
 better to regard this latter as a secondary and additional right, which is 
 ordinarily given for the better security of the first, but may in some cases 
 be withheld. Thus I should say that a destitute pauper had a legal right to 
 relief in England, because the poor-law officials are liable to punishment if 
 they refuse him relief, though the pauper himself cannot sue or prosecute them.
 
 CHAPTER III 
 
 THE GENERAL PRINCIPLES OF LEGISLATION 
 
 1. IN the preceding chapter we have been concerned 
 with the general conception of Law, in the strict political 
 sense, the " law of the land," which judges and magistrates 
 are appointed to administer and enforce ; as distinct from 
 other kinds of recognised rules of conduct, such as those 
 contained in the moral code, the code of honour, the code 
 of social behaviour, which are also in a looser sense called 
 moral laws, laws of honour, social laws. Law, in the sense 
 in which we are primarily 1 concerned with it, is a body 
 of rules intended to control the conduct of members of a 
 political society, for the violation of which penalties may 
 be expected to be inflicted by the authority of the govern- 
 ment of that society ; and which, therefore, may be regarded 
 as imposed by government. For, though they may not 
 have actually been laid down by any existing person or 
 body of persons whose orders are habitually obeyed by the 
 rest of the community, there is always some possible 
 combination of persons and bodies which is recognised as 
 competent to modify them; and any resistance to them 
 may be expected to be overborne by the force which the 
 habitual obedience of the community places at the dis- 
 posal of government. This general definition of law is 
 of course applicable not specially to laws as they ought 
 to be, but to good and bad laws alike : it states the 
 
 1 The propriety of the phrase "international law " will be discussed later. 
 See Chap. XVII. 
 
 33 D
 
 34 ELEMENTS OF POLITICS CHAP. 
 
 characteristics which, in accordance with usage, we agree to 
 consider essential to the right application of the term " law," 
 in its special political sense. Hence the discussion of this 
 definition belongs to the study of actual laws as they are 
 and have been, no less than to the study of the principles on 
 which an ideal system of legislation ought to be constructed : 
 it forms, in fact, a region common to the two studies. 
 At the same time, though the definition carefully avoids 
 any implication that the law spoken of is good, right, or 
 just, it does not altogether exclude an ideal element from 
 the conception of law, and of the community to which the 
 law belongs : for it assumes that the orders of government, 
 whether good or bad, are habitually obeyed by the bulk of 
 the community : whereas in many communities at many 
 times the greatest practical difficulty and the most urgent 
 practical need has been not to get the (so-called) government 
 to issue good orders, but to get them generally obeyed when 
 they have been issued. When, however, the commands of 
 persons attempting to govern are widely disobeyed with 
 impunity, though such persons are still by courtesy com- 
 monly called a government, we do not come into serious 
 conflict with common sense by affirming that they do 
 not really govern, and that their impotent commands are 
 not really laws : and it is in the stricter sense of this 
 affirmation that I shall generally use these fundamental 
 terms. 
 
 Bearing, then, in mind that the political community we 
 are considering is assumed to be orderly and not anarchical, 
 so that government is able to bring irresistible physical force 
 to crush any open disobedience to law ; let us now proceed 
 to consider on what principles laws ought to be established 
 and administered. First, however, it will be convenient 
 for the present to take a narrower view of the Law for 
 which we are to lay down principles, than that given in 
 my definition ; by excluding any rules which relate to the 
 appointments and duties of persons exercising governmental 
 functions, such as the rules issued to the subordinate 
 officers of government in (e.g.} the Home Office, or any
 
 Ill THE GENERAL PRINCIPLES OF LEGISLATION 35 
 
 similar departments of the executive. Such rules would 
 not ordinarily be called " laws," except so far as they are 
 laid down by Parliament: but in any case they do not 
 form part of the law that is primarily the subject of our 
 present investigation : for we are considering the establish- 
 ment and maintenance of Law as a main part of the work 
 which government should be constructed to do : whereas 
 these administrative rules relate to the manner in which the 
 complex instrument for performing governmental work should 
 be constituted and kept in action. The Law then, for deter- 
 mining which we have now to lay down principles, should 
 be conceived as a body of rules intended to control the 
 conduct of private persons, so far as they are subjects but 
 not in a narrower sense servants of government. 
 
 Accordingly, in considering the rights that a good 
 system of legislation ought to secure to such persons, I 
 shall for the present omit rights that correspond to obliga- 
 tions imposed not on other private persons, but on members 
 of the government itself. It is important to note this, 
 because among what are commonly recognised in free 
 countries or countries struggling towards freedom as 
 " fundamental rights of individuals," there are several 
 important cases in which the obligation that constitutes 
 the other aspect of the right is a governmental obligation. 
 Such, for instance, are the right to freedom of speech and 
 of the press, the right to freedom of assembly, free exercise 
 of religion. In any country where these rights are not 
 completely realised, it is through the action of government 
 that they are withheld or impaired : hence it is convenient 
 to distinguish these as constitutional rights from the civil 
 rights with which we are now primarily concerned. Whether 
 the governmental obligation corresponding to such a con- 
 stitutional right is strictly legal, or only moral or quasi- 
 legal, depends on conditions which will be appropriately 
 considered in the second part of the treatise ; in which I 
 shall examine the structure of the different organs of govern- 
 ment, and the relations of government to the governed. I 
 will here only observe that the establishment and the
 
 36 ELEMENTS OF POLITICS CHAP. 
 
 maintenance of such rights do not form part of the 
 ordinary work of Government regarded as a harmonious 
 whole J in the same sense in which the enforcement of 
 legal obligations on private citizens forms part of its work ; 
 but only in the negative sense that it is bound not to 
 encroach upon such rights. 
 
 There are, however, other governmental duties of a 
 positive kind, which have a closer connection with civil 
 rights, as they are directly required for the effective realisa- 
 tion of the latter : I mean especially the work to be done 
 by governmental officials judges, magistrates, policemen, 
 and others for the prevention or reparation of wrongs to 
 individuals. These will be most appropriately considered 
 later on : 2 after we have discussed the civil rights, of 
 which the actual or threatened violation gives occasion for 
 the exercise of these preventive or reparative functions of 
 Government. For somewhat similar reasons, I reserve the 
 consideration of the obligations that it is expedient to 
 impose on ordinary members of the community in the 
 interest so to say of government, i.e. in order to enable 
 government to perform its work efficiently ; as, for instance, 
 the general obligation imposed on male adults to assist, 
 when occasion arises, in the repression of crime and the 
 maintenance of order. At present, I wish to concentrate 
 attention on the rules by which the mutual relations of 
 private members of the community as contrasted with 
 their relations to the government should be determined, 
 so far as these rules require the aid of governmental force 
 to secure their adequate observance. 
 
 But again, when we examine those rights of private 
 individuals that correspond to obligations imposed on other 
 private persons, we find that one class of these also only 
 
 1 This qualification is indispensable, because, as I shall hereafter explain, 
 I regard it as a normal part of the duty of the Legislative and Judicial 
 organs of government to prevent encroachments by the Executive organ on 
 the constitutional rights of private persons : the Executive being ordinarily, 
 by the nature of its functions, under the strongest temptation to such en- 
 croachments. 
 
 2 See Chaps. VIII. and IX.
 
 in THE GENERAL PRINCIPLES OF LEGISLATION 37 
 
 come into operation in consequence of the violation of other 
 rights ; such as the right to compensation for injury wilfully 
 or carelessly inflicted, and the right to repel violence by 
 violence. Such remedial rights are obviously to be regarded 
 as secondary and subordinate to the antecedent rights, the 
 violation of which renders them necessary : they only come 
 into operation because law is imperfectly obeyed or perhaps 
 in some cases imperfectly defined. The rights which we 
 may distinguish as primary, and which we should begin by 
 determining, are rights which would be established and 
 operative if the law was perfectly defined and perfectly 
 obeyed. 
 
 2. What then are the principles on which the laws 
 defining the primary civil rights of private members of a 
 civilised community should be constructed, or the criteria by 
 which the goodness or badness of any actual body of such 
 laws should be tested ? In answering this question, I do 
 not seek, as I said in my first chapter, to propound and 
 establish any new principles, not recognised in ordinary 
 political thought and discussion ; my aim is merely to render 
 somewhat more precise in conception the principles that I 
 find commonly recognised, and to make their application to 
 particular cases as clear and consistent as possible. 
 
 In the first place, we are all agreed that laws ought to 
 be just or not unjust : * and by this we do not merely mean 
 that they ought to be justly administered i.e. that the 
 general rules of law ought to be impartially applied without 
 " respect of persons " to the particular cases brought before 
 the courts for judgment but we mean also that these 
 general rules themselves ought to be framed so as to avoid 
 injustice. But when I try to give a definite signification 
 to this principle, the only signification I can find which 
 would really carry with it universal agreement is, that all 
 arbitrary inequality is to be excluded : that persons in 
 
 1 I say "or not unjust," because it would be commonly recognised that 
 there is an ideal justice which we cannot hope to realise in the legal relations 
 of the members of any actual community. But we shall certainly agree in 
 holding that laws ought not to be unjust.
 
 38 ELEMENTS OF POLITICS CHAP. 
 
 similar circumstances are to be treated similarly; and 
 that, so far as different classes of persons receive different 
 treatment from the legislator, such differences should nob 
 be due to any personal favour or disfavour with which the 
 classes in question are regarded by him. This agreement 
 therefore gives no positive guidance as to the plan on which 
 our impartially framed laws are to be constructed : it does 
 not enable us to say how far and on what grounds persons 
 in different circumstances are to be treated differently. 
 
 I think, however, that we may go a step further, and 
 claim general if not universal assent for the principle 
 that the true standard and criterion by which right legisla- 
 tion is to be distinguished from wrong is conduciveness 
 to the general " good " or " welfare." And probably the 
 great majority of persons would agree to interpret the 
 " good " or " welfare " of the community to mean, in the last 
 analysis, the happiness of the individual human beings 
 who compose the community ; provided that we take into 
 account not only the human beings who are actually living 
 but those who are to live hereafter. This, at any rate, is 
 my own view. Accordingly, throughout this treatise I shall 
 take the happiness of the persons affected as the ultimate 
 end and standard of right and wrong in determining the 
 functions and constitution of government. 
 
 I draw special attention to the inclusion of posterity in 
 my statement of the ultimate end of legislation : because it 
 appears to me that whatever force there is in the argu- 
 ments urged l against the view that the end of government 
 is the happiness of the individuals governed, depends on the 
 conception of these individuals as present, actually existing, 
 members of the particular community in question. I fully 
 concede that there are crises of national life in which it is 
 the duty of the present generation of citizens, the actually 
 living human beings who compose any political community, 
 to make important sacrifices of personal happiness for the 
 " good " or " welfare of their country," and that this good or 
 welfare cannot be completely analysed into private happiness 
 
 1 E.g. by Bluntschli. Theory of the State (translated), Book v.
 
 in THE GENERAL PRINCIPLES OF LEGISLATION 39 
 
 of the individuals who make the sacrifices. I should add 
 that there are cases in which it is the duty of the members 
 of one political society to make sacrifices for the good or 
 welfare of other sections of the human race. But I hold 
 that if this good is not chimerical and illusory, it must 
 mean the happiness of some individual human beings : if 
 not of those living now, at any rate of those who are to live 
 hereafter. And I have tried in vain to obtain from any 
 writer who rejects this view, any other definite conception 
 of the " good of the State." l 
 
 If it is urged 2 that there are many most important 
 sources of the happiness of human beings with which 
 government has little or nothing to do, and which it will 
 only make a mistake if it tries to control art, literature, 
 and for the most part industry the answer is, that it 
 appears from this very argument that the limits of govern- 
 ment interference in these departments are capable of being 
 determined on utilitarian principles ; for the argument is 
 that interference beyond those limits will be demonstrably 
 the reverse of useful will be not conducive to the general 
 happiness. 
 
 3. We have thus arrived at the utilitarian doctrine 
 that the ultimate criterion of the goodness of law, and of 
 the actions of government generally, is their tendency to 
 increase the general happiness. The difficult question how 
 far, if at all, the interests of any one community are to 
 be postponed by its government to the interests of other 
 sections of humanity is one that it will become necessary 
 to deal with at a later stage ; but we are hardly called upon 
 to consider it when we are discussing the internal functions 
 of government the principles of its action in relation to 
 the governed. The happiness then of the governed com- 
 munity will be assumed as the ultimate end of legislation, 
 
 1 E.g. Bluntschli, I.e. (Book v. ch. iv.) speaks of "development of a 
 people's natural gifts" and the "perfecting of a people's life" ; but I know 
 no criterion for determining wherein the perfection of life consists and for 
 distinguishing the right development of natural gifts from the wrong de- 
 velopment, if the utilitarian criterion be rejected. 
 
 2 As by Bluntschli, I.e., Book v. ch. iii. 2.
 
 40 ELEMENTS OF POLITICS CHAP. 
 
 throughout the nine chapters that follow. 1 But even the 
 acceptance of this principle gets us very little way towards 
 a system of legislation : since we find it admitted equally 
 by persons differing profoundly in their political aims and 
 tendencies : indeed, there is scarcely any widely spread 
 political institution or practice however universally con- 
 demned by current opinion which has not been sin- 
 cerely defended as conducive to human happiness on the 
 whole. Hence, when we have agreed to take general 
 happiness as the ultimate end, the most important part 
 of our work still remains to be done : we have to estab- 
 lish or assume some subordinate principle or principles, 
 capable of more precise application, relating to the best 
 means for attaining by legislation the end of Maximum 
 Happiness. 
 
 Now when we consider the different ways in which the 
 happiness of individuals may be promoted by laws, the most 
 fundamental distinctions appear to be two. 
 
 I. In the first place, legal control may be exercised in 
 the interest of the person controlled, or of other persons : the 
 government may either aim at making each of the individuals 
 to whom its commands are addressed promote his own 
 happiness better than he would without interference, or it 
 may aim at making his conduct more conducive to the 
 happiness of others. So far as the former is the avowed 
 aim of government, its control resembles that properly exer- 
 cised by a father over his children : accordingly this kind 
 of governmental interference is commonly spoken of as 
 " paternal " ; and I shall adopt this as the most convenient 
 name for it. The term is used with more or less sarcasm, 
 because such interference as applied to sane adults is 
 commonly regarded as being in general undesirable in 
 modern civilised communities. The grounds for this 
 opinion are chiefly these: (1) that men, on the average, are 
 more likely to know what is for their own interest than 
 government is, and to have a keener concern for promoting 
 
 1 Except so far as the pain of inferior animals is also taken into account, 
 in legislation prohibiting cruelty to animals.
 
 in THE GENERAL PRINCIPLES OF LEGISLATION 41 
 
 it, so that, even supposing paternal legislation would be 
 generally obeyed, its direct effects are likely to be on the 
 whole mischievous taking into account the annoyance 
 caused by coercion ; and (2) that, even if its direct effects 
 are beneficial, its indirect effects in the way of weakening 
 the self-reliance and energy of individuals, and depriving 
 them of the salutary lessons of experience, are likely to out- 
 weigh the benefit : while (3) such laws are specially liable 
 to evasion, since, in cases where they are felt to be 
 coercive, there will usually be no private individuals who 
 feel directly interested in the effectiveness of the coercion 
 the persons whom the laws are primarily designed to benefit 
 being the very persons who require to be coerced. It is 
 further held that, even if any little good were done by 
 this kind of legislation, it would not be worth the ex- 
 pense entailed by it both of money and of the energies of 
 statesmen needed for other functions : and finally, that 
 there is a serious political danger in the increase of the 
 power and influence of government that would be involved 
 in a consistent application of the " paternal " principle. I 
 shall consider hereafter how far these arguments are valid 
 to the complete exclusion of this principle : at present it is 
 enough to say that neither in current political reasoning 
 nor in the actual facts of legislation is anything more 
 than a very subordinate place now ever allowed or 
 claimed for its application. We are all agreed that, in 
 the main, the coercion of law is and ought to be applied 
 to adult individuals in the interest primarily of other 
 persons. 
 
 II. But here a second fundamental distinction suggests 
 itself. The services which an individual is legally bound to 
 render to others may be positive or negative : they may con- 
 sist in doing useful acts, or in forbearing to do mischievous 
 acts. Now there is no doubt that the constant rendering of 
 reciprocal positive services is indispensable to the production 
 of the greatest attainable happiness for the human beings 
 who compose a modern civilised community ; all agree, 
 indeed, that such exchange of services has continually to
 
 42 ELEMENTS OF POLITICS CHAP. 
 
 become more complex and elaborate, if we are to realise the 
 economic advantages of that development of industry which 
 the progress of the arts continually renders possible. And 
 most of us would readily accept, as a moral ideal, what I 
 may call ethical as contrasted with political socialism ; that 
 is, the doctrine that the services which men have to render 
 to others should be rendered, as far as possible, with a 
 genuine regard to the interests of others : that, as J. S. Mill, 
 after Comte, lays down, "every person who lives by any 
 useful work should be habituated to regard himself, not as 
 an individual working for his private benefit, but as a public 
 functionary," working for the benefit of society ; and should 
 regard " his wages of whatever sort ... as the provision 
 made by society to enable him to carry on his labour." 
 But it is widely held that it is the business of the moralist 
 and the preacher, not of the legislator, to aim at producing 
 in the community this habit of thought and feeling ; and 
 that it will be on the whole conducive to the general good 
 to leave the terms of positive social co-operation except so 
 far as it is needed to prevent aggression to be settled by 
 private agreement among the persons co-operating. It is 
 held, in short, that what one sane adult is legally compelled 
 to render to others should be merely the negative service of 
 non-interference, except so far as he has voluntarily under- 
 taken to render positive services ; provided that we include 
 in the notion of non-interference the obligation of remedy- 
 ing or compensating for mischief intentionally or carelessly 
 caused by his acts or preventing mischief that would 
 otherwise result from some previous act. This principle for 
 determining the nature and limits of governmental inter- 
 ferences is currently known as " Individualism," and I shall 
 refer to it by this name ; the requirement that one sane 
 adult, apart from contract or claim to reparation, shall 
 contribute positively by money or services to the support of 
 others I shall call " socialistic." I shall also apply this 
 term to any limitation on the freedom of action of in- 
 dividuals in the interest of the community at large, that is 
 not required to prevent interference with other individuals,
 
 in THE GENERAL PRINCIPLES OF LEGISLATION 43 
 
 or for the protection of the community against the aggression 
 of foreigners. 1 
 
 The legislation of modern civilised communities then, is, 
 in the main, framed on an Individualistic basis; and an 
 important school of political thinkers are of opinion that the 
 coercive interference of government should be strictly limited 
 to the application of this principle. I propose, accordingly, 
 in subsequent chapters, to trace in outline the chief charac- 
 teristics of the system of Law that would result from the 
 consistent application of the Individualistic principle to the 
 actual conditions of human life in society. I shall then 
 examine certain difficulties and doubts that arise when we 
 attempt to work out such a consistent and exclusive indi- 
 vidualistic system : I shall analyse the cases in which, in 
 my judgment, it tends to be inadequate to produce the 
 attainable maximum of social happiness : and I shall con- 
 sider to what extent, and under what carefully defined 
 limitations, it is expedient to allow the introduction of 
 paternal and socialistic legislation, with a view to remedy 
 these inadequacies. 
 
 1 The distinction and relations between these two meanings of the term 
 "socialistic" will be fully discussed later. See Chap. XII.
 
 CHAPTEK IV 
 
 INDIVIDUALISM AND THE INDIVIDUALISTIC MINIMUM 
 
 1. IN this and the four following chapters I propose to 
 work out in some detail what I may call the " Individualistic 
 minimum " of governmental interference : that is, the dis- 
 tribution of legal rights and obligations among private 
 persons that results from applying the Individualistic 
 principle, as strictly as seems practically possible, to the 
 actual conditions of human life in society. But before I 
 proceed to this examination, it ought to be noted that some 
 Individualists view this principle in a light fundamentally 
 different from that in which I have regarded it in the 
 preceding chapter. They hold the realisation of freedom 
 or mutual non-interference to be not merely desirable as 
 most conducive to human happiness, but absolutely desirable 
 as the ultimate end of law and of all governmental interfer- 
 ence : an ideal good which would be degraded if it were 
 sought merely as a means of obtaining pleasure and avoiding 
 pain. This opinion, however, may I think be shown to be 
 inconsistent with the common sense of mankind, as expressed 
 in actual legislation, and even with the practical doctrines 
 when they descend to particulars of the thinkers who 
 profess to hold it. 1 For the kind of laws which Indi- 
 
 1 In arguing against any opinion as to^ultimate ends, either in the ethics 
 of private conduct or in politics, there are two lines of demonstration open to 
 the assailant : (1) Demonstration of inconsistency, if the person holding it is 
 known, or may be presumed, to hold any other opinions with which it is not 
 reconcilable, and (2) Demonstration of paradox, or proof of the inconsistency 
 of the doctrine in question or its consequences with views commonly 
 
 44
 
 CH.IV INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 45 
 
 vidualists generally agree to recommend may be shown to 
 require for their justification a utilitarian interpretation of 
 the individualistic principle : that is, they require us to 
 conceive, as the general aim of law and government, not the 
 prevention among the governed of mutual interference with 
 freedom in the ordinary sense, but the prevention of mutual 
 interference with each one's pursuit of happiness for himself 
 and his family. And I think that the attempt to show this, 
 under each of the chief heads of individualistic legislation, 
 will be the best way of clearing up our general conception 
 of the individualistic principle ; while at the same time it 
 will afford a convenient opportunity of surveying the whole 
 range of the subject before we proceed to consider it in 
 detail. 
 
 Let us begin by examining the usage of the words 
 " Freedom," or " Liberty " which I take to be synonymous. 
 When employed without qualification " freedom " signifies 
 primarily the absence of physical coercion or confinement : 
 A is clearly not a free agent if B moves his limbs, and he 
 is not free if he cannot get out of a building because B has 
 locked the door. But in another part of its meaning 
 which from our present point of view is more important 
 " freedom " is opposed not to physical constraint, but to the 
 moral restraint placed on inclination by the fear of painful 
 consequences resulting from the action of other human beings. 
 There is, however, some disagreement as to the extent of this 
 latter meaning : it is disputed whether the moral restraint 
 that impairs my freedom may be caused by fear of any other 
 man's action or only by fear of governmental action. The 
 latter view was taken by Hobbes, who regarded the " state 
 of nature " that is, of no government as a state of un- 
 limited liberty, though also one of intense mutual fear. 
 But this view is paradoxical : it seems absurd to say that it 
 is contrary to liberty to be restrained by dread of the 
 magistrate, and not contrary to liberty to be similarly or 
 
 accepted. The former method, however, is chiefly available in controversy 
 with particular individuals, which I do not here profess to undertake. I 
 therefore only suggest it here in a general way.
 
 46 ELEMENTS OF POLITICS CHAP. 
 
 more painfully restrained by dread of the lawless violence 
 of a neighbour : we should generally agree with Paley that 
 not only happiness but liberty is less in the Hobbist state 
 of nature than in a well-ordered political society. If it be 
 granted, then, that my liberty is impaired by the restraint 
 on volition caused by fear of the acts of human beings 
 generally, the statement sometimes made that " every law is 
 contrary to liberty " is misleading, though in a sense true : 
 since the diminution of liberty caused by the fear of legal 
 penalties may be more than balanced by the simultaneous 
 diminution of private coercion. It may be fairly said that 
 the end of government is to promote liberty, so far as 
 governmental coercion prevents worse coercion by private 
 individuals. 
 
 We have, however, to observe that freedom is sometimes 
 attributed to the citizens of a state, not because the govern- 
 mental coercion applied to them is restricted to the pre- 
 vention of private coercion, but because it is exercised with 
 the consent of a majority of the citizens in question. 
 Indeed, the notion of " liberty " in this sense which may 
 be distinguished as " constitutional liberty " has had a 
 very prominent place in political discussion. I do not wish 
 to discard this use of the term altogether : but I think it is 
 liable to be misleading. It may be fairly affirmed that a 
 body of persons is " free " in the ordinary sense when the 
 only rules restraining them are in accordance with the 
 corporate will of the body : but it is only in a very peculiar 
 sense liable to collide markedly with the ordinary meaning 
 of the term that "freedom" can be therefore affirmed of 
 every member of the body. It is obvious that my inclina- 
 tions may be restrained to any extent, and in the most 
 annoying way, under a government of which the supreme 
 control is vested in the mass of the citizens, if I have the 
 misfortune to belong to the minority of this body : while, 
 again, it is quite conceivable that under a despotic govern- 
 ment I may be subject to no further coercion than is 
 necessary to prevent worse coercion by private persons. 
 Accordingly, when I speak without qualification of freedom
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 47 
 
 as belonging to individuals, I shall not mean constitutional 
 freedom, but civil freedom as above defined absence of 
 physical and moral coercion. 
 
 It is certainly conceivable that the maintenance of " equal 
 freedom " in this sense should be taken as the ultimate and 
 sole end of legislation, and of governmental interference 
 generally. But in fact, as I have said, all governments 
 and most Individualists practically go beyond this, and 
 aim at protecting the governed from pain and loss or 
 diminution of their means of gratifying their desires caused 
 by the action of other human beings. In so doing, I 
 maintain, they adopt by implication a utilitarian view of 
 the mutual interference that law ought to prevent, even 
 while expressly disavowing the utilitarian criterion. 
 
 2. Let us proceed to particulars : and take first the 
 class of rights which Blackstone distinguishes as " Personal 
 Rights." We find that under this head all civilised systems 
 of law aim at securing the personal safety of individuals no 
 less than their personal liberty ; i.e. they seek to prevent 
 the infliction of physical injury or pain even serious 
 physical discomfort that can hardly be called pain as well 
 as the imposition of constraint. No doubt physical injury 
 or pain usually involves a kind of constraint ; since the 
 injured man, even if not physically disabled, is prevented 
 from doing what he likes by the fear of the recurrence 
 of the injury. This is an important reason for preventing 
 physical injury, and the main reason for making the 
 mere threat of inflicting such injury a legal offence : but 
 it would be absurd to maintain that assault and battery are 
 prohibited solely on account of their tending to produce 
 subsequent alarm in the person assaulted and battered 
 sufficient to have a coercive effect on his conduct : all 
 would admit that they ought to be prevented, even if 
 such coercive effect did not follow. Hence common sense 
 clearly requires us to understand the non - interference, 
 which such prohibition secures, to include not only 
 non-interference with Freedom but non-interference with 
 Happiness.
 
 48 ELEMENTS OF POLITICS CHAP. 
 
 This is still more obviously true as regards the interfer- 
 ence with physical comfort, prohibited under the head of 
 nuisances ; and I think it is also true of the attacks on 
 reputation, which all civilised nations aim at preventing by 
 law. No doubt such attacks may be a form of moral 
 coercion : but it is not thought that my right to be pro- 
 tected against calumny depends on the question whether 
 my action has been or is likely to be modified by the 
 unmerited dislike and contempt which the calumny has 
 caused. Again, the defamation of A by B undoubtedly 
 tends to impair A's ability to gratify his desires, by 
 rendering it difficult for him to obtain the co-operation of 
 others. But it palpably strains the common notion of 
 freedom to say that A is less free merely because other 
 people will not do what he wants them to do. And as B's 
 freedom is directly and palpably diminished if he is pro- 
 hibited from saying what he thinks of A, the restraints of 
 the law of libel can hardly be justified if freedom in any 
 ordinary sense and not happiness, be taken as the ultimate 
 criterion. 
 
 Again, Individualists and legislators generally agree 
 that where law has not succeeded in preventing injury to 
 person or reputation, it ought generally to enforce on the 
 wrongdoer pecuniary compensation for the mischief, unless 
 the injury is one that does not admit of being repaired ; 
 so as to bring about a condition of things approximating 
 as far as possible to what would have existed had there 
 been no injury. From the point of view of utilitarian 
 individualism this duty is clear ; but if freedom be taken 
 as an absolute end, it is difficult to show how the loss of 
 freedom can properly be compensated by money. For if it 
 be said that the richer man, as such, enjoys more freedom 
 than the poorer, the fundamental aim of Individualism 
 to secure by law equal freedom to all seems to transform 
 itself into the fundamental aim of extreme Socialism, to 
 secure equal wealth to all. 
 
 This leads us naturally to consider the application of 
 the individualistic principle in the department of law which
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 49 
 
 is concerned with the protection of property. The Indi- 
 vidualistic minimum of governmental interference is com- 
 monly stated to include " protection of property " as well as 
 of "person" : and it is obvious that we are bound to prevent 
 any interference by one man with the property of another, 
 if we suppose private property already instituted ; since, 
 in fact, the legal institution of private property means 
 the prohibition of such interference. But the institution 
 itself can hardly be justified by the general principle of 
 Individualism, if we take freedom in the ordinary sense 
 as an ultimate end, without any regard to utility ; it would 
 rather seem that the end would be most completely realised 
 by preventing A from thwarting B's actual use of material 
 things, without going so far as to support B in the permanent 
 exclusion of other men from the enjoyment of things that 
 he has once used. The case is different if we interpret the 
 principle in a utilitarian sense. From this point of view 
 the protection of exclusive use is obviously required in order 
 that individuals may have adequate inducement to labour 
 in adapting matter to the satisfaction of their needs and 
 desires. The natural reward of labour is the full enjoyment 
 of the utility resulting from it ; without the prospect of 
 this natural reward or of some adequate substitute for it 
 we could not expect much of the labour to be performed. 
 Hence, from the point of view of utilitarian Individualism, 
 the law ought clearly to aim at securing each individual 
 from the interference of others with his enjoyment of the 
 results of his labour : and, in fact, the provision of this 
 security is often simply stated as the end by reference to 
 which private property is to be justified. 
 
 It ought, however, to be observed that this principle 
 does not directly justify the appropriation of material things 
 in their original or unlaboured condition : and if, on the 
 utilitarian ground above given, A is held to interfere with 
 B by using matter to which B has applied his labour, it 
 cannot be denied that B's claim to exclude A from this matter 
 involves some interference with A, if it appreciably restricts 
 A's power of adapting matter to the satisfaction of his needs 
 
 E
 
 5 o ELEMENTS OF POLITICS CHAP. 
 
 and desires. Still, I conceive that private property may 
 be clearly justified on the individualistic principle taken 
 in a utilitarian sense so far as it can be shown either (1) 
 that the thing appropriated would not practically have been 
 available for human use, if the appropriator had not laboured 
 in seeking for it ; or (2) that his appropriation does not 
 materially diminish the opportunities open to other persons 
 of obtaining similar things, owing to the natural abundance 
 of such opportunities. On one or other of these grounds 
 it is easy to justify the appropriation of such things as fish 
 caught in the open sea, or wild animals, plants, or even 
 minerals, found in large tracts of uncultivated country. 
 And it has been maintained by Locke and others, that in 
 the " beginning and first peopling of the great common of 
 the world" the appropriation of land was similarly justifiable, 
 " since there was still enough and as good left, and more 
 than the yet unprovided could use." But however true 
 this may have been in a primitive condition of human 
 society, it seems evident that social development has long 
 since deprived this justification of any validity ; and now, 
 at any rate, the individuals who have not inherited land 
 do not find " enough and as good " within their reach. 
 Accordingly, in the case of land, the principle of mutual 
 non-interference is, I conceive, only applicable in a limited 
 and qualified manner. And, in fact, when the question of 
 regulating the appropriation of land has been practically 
 presented to modern states in a simple form l for instance, 
 in relation to land as yet unappropriated, in a newly 
 colonised country it has not commonly been held that 
 individuals desirous of using such land, for agricultural 
 or other purposes, have a right to claim the exclusive use 
 of as much land as they may find it convenient to 
 occupy. The question how such land is to be allotted 
 I shall consider more in detail in the next chapter. 
 
 1 That is, in a form not complicated by the consideration of established 
 rights of private property, which could not justly be abolished without 
 compensation. The general question of compensation for established rights 
 will be considered in Chap. XII.
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 51 
 
 Here I am chiefly concerned to point out that Absolute 
 Individualism supplies no method of dealing with its 
 difficulties. 
 
 So far I have tacitly assumed that the labour necessary 
 to adapt matter to human uses can be sufficiently encouraged 
 by appropriating to the labourer the thing so adapted. 
 There is, however, another case of property, of considerable 
 importance in modern civilised communities, where quite 
 peculiar obligations have to be imposed on non-owners : I 
 mean the case of " patents " and " copyrights," by which the 
 exclusive use of certain products of intellectual labour is 
 secured to the producers or to their grantees. Here, from 
 the nature of the labour, the only way of securing its 
 results to the labourer is by prohibiting other members of 
 the community from imitating them. At the same time, 
 such an interference with the freedom of action of the 
 persons prohibited is difficult to justify from the point of 
 view of absolute individualism ; since it cannot be shown 
 that this prohibition of imitation tends to secure the 
 persons concerned from physical or moral coercion. But it 
 certainly tends to secure the greatest possible independent 
 production of utility, assuming that the results that would 
 be attained by imitation are such as the imitators could not 
 possibly have arrived at independently. On this assump- 
 tion, indeed, property in the results of intellectual labour, 
 protected by patents and copyrights, is more simply justifi- 
 able on the (utilitarian) principle of mutual non-interference, 
 than property in material things : just because the labour 
 is not " mixed " with matter. To what extent the assump- 
 tion is in different cases legitimate I shall consider in the 
 next chapter. 
 
 That an individual who has been allowed to appropriate 
 anything should be allowed to transfer his rights over it 
 wholly or partially to another is from any individualistic 
 point of view obvious : since such transfer involves no fresh 
 interference with the freedom of others, while its prohibition 
 would involve interference with the transferor's freedom 
 provided always that the transfer is really a free act. But
 
 52 ELEMENTS OF POLITICS CHAP. 
 
 it has to be observed that this proviso, if Freedom is taken 
 in the ordinary sense, is inadequate to justify the generally 
 accepted conditions of the validity of such transfers. For 
 it is commonly understood that such transfers ought not to 
 be valid if obtained by force or fraud ; but the proviso only 
 justifies invalidation when the transferrer is coerced or 
 intimidated by illegal violence, since it is surely strained to 
 say that a man's freedom is impaired by false representations 
 on the part of the transferee. 1 On the other hand, from 
 the utilitarian point of view, it is easy to see that the 
 deception of A by B tends to interfere generally with A's 
 pursuit of his ends : and, in particular, that freedom to 
 transfer property is only expedient because the transferrer 
 may be generally presumed to have consulted his own 
 interest in making the transfer. But if he has been deceived 
 by false representations this presumption obviously fails : 
 and it also fails if the transferrer was for any other special 
 reason clearly incapable of forming a sound judgment as to 
 the value of the thing transferred or the considerations that 
 induced him to transfer it. Thus we see the expediency of 
 making the legal validity of such transfers depend on con- 
 ditions tending to exclude not merely coercion but decep- 
 tion, and also inadequate rationality on the part of the 
 transferrer : and such conditions are in fact imposed in the 
 legal systems of all civilised countries. 
 
 So far I have spoken of transfers between living persons : 
 it remains to consider how, on the principle of non-interfer- 
 ence, property is to pass from the dead to the living. It is 
 obviously expedient that when a man dies some definite 
 successor or successors to his various rights of property should 
 be determined somehow : but it is less clear how far the 
 will of the dead person should be allowed to determine it. 
 On the one hand, it may be urged that it can hardly be 
 an interference with a man's freedom of action to preclude 
 
 1 If we say generally that freedom is impaired through intellectual error 
 caused by the action of others, we shall have to say that the majority in a 
 democracy is not free when it is misled by demagogues : and this would 
 surely be a paradox though a suggestive paradox.
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 53 
 
 him from having any influence on mundane affairs after his 
 death : on the other hand, if he could own property and 
 transfer it up to the moment of death without encroaching 
 on the freedom of other members of the community, it is 
 hard to see how this can be interfered with by a transfer 
 that takes effect after death. Each of these opposing 
 negations is, I think, valid ; so that the problem is insoluble 
 if Freedom in the ordinary sense be taken as an ultimate 
 end. But from the point of view of Utilitarian Individual- 
 ism the individual's freedom is valued as a means, not to his 
 own happiness alone, but to the general happiness : and the 
 abrogation of the power of bequest would remove from him 
 an important inducement to the exercise of industry and 
 thrift in advancing years, for the benefit of others whose 
 happiness he desires to promote whether from affection or 
 regard for posthumous reputation, or any other motive. 1 A 
 restriction of bequest in the interest of children or other 
 near relatives would not be exposed to the same objections ; 
 but such a measure is hardly justifiable on the individualistic 
 principle except in the special case of children unable to 
 provide for their own livelihood. It is a different question 
 whether a man should have full power to determine for an 
 indefinite time after death the manner in which the wealth 
 owned by him is to be used, otherwise than by determining 
 his successors in ownership. There are strong reasons for 
 restricting this power, which I will consider later ; here I 
 will only say that if it were not allowed to some extent, 
 persons desirous of posthumously regulating the use of 
 their property would try to effect this by bequeathing it to 
 persons pledged to carry out their regulations, and would 
 probably in a large measure succeed ; and it would require 
 strong grounds of social utility to justify us in encouraging 
 
 1 It may be added that the abrogation of the power of bequest would, in 
 the present condition of average human motives, be likely to be largely 
 inoperative, except in cases where death was sudden and incapable of being 
 foreseen ; since most men would prefer either to exchange their capital 
 somehow for a life-income or to transfer it in old age or when the prospect 
 of death was otherwise near to the objects of their preference, rather than 
 leave it to be absorbed by the State.
 
 54 ELEMENTS OF POLITICS CHAP. 
 
 such persons by complete legal impunity to violate their 
 pledges to the dead. 
 
 In the last argument it has been assumed that the per- 
 formance of contracts to render future services should in 
 general be made legally binding. This is, indeed, a cardinal 
 tenet of Individualists : I do not, however, see how it can 
 be clearly deduced from the principle that adopts Freedom 
 as an ultimate end ; since a man would be more completely 
 free in the ordinary sense if his volition at any given 
 time could not be legally restricted by any previous expression 
 of will as regards the future : though his power of attaining 
 his ends would, of course, be diminished by his being less 
 able to rely on the future actions of others. Moreover, if 
 we take the realisation of freedom to include the perform- 
 ance of contracts freely entered into, it would follow that 
 if freedom be the ultimate end such contracts ought to be 
 legally enforced in all cases in which they do not tend to 
 impair the freedom of any third party. But no actual system 
 of law attempts anything like this : in England (e.g.} no 
 engagement to render personal services except the marriage 
 vow gives the promisee a legal claim to more than pecuni- 
 ary damages ; all such contracts, if unfulfilled, turn into 
 mere debts of money so far as their legal force goes. And 
 from a utilitarian point of view this limited and qualified 
 enforcement of contract is justifiable : since, on the one 
 hand, it is necessary for social wellbeing that men should 
 rely generally on the fulfilment of mutual engagements ; 
 and, on the other hand, what is primarily important from a 
 utilitarian point of view, is not that A should perform his 
 promise to B, but that B should not be damaged by A's non- 
 performance. 1 From this point of view again there are 
 
 1 It is easy to see that the performance of a promise to render personal 
 services may in certain cases cause loss or inconvenience to the promiser, far 
 outweighing the utility to the promisee : so that from the point of view 
 of utilitarian individualism it would be an excessive interference to en- 
 force specific performance, provided that the damage to the promisee 
 through non-performance is of a kind that admits of adequate pecuniary 
 compensation. In other cases, in which pecuniaiy compensation would 
 be inapplicable or inadequate, there is a different utilitarian reason for
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 55 
 
 obvious reasons for imposing certain further conditions on 
 the legal validity of engagements for future conduct, even 
 when freely entered into : similar in the main to those 
 already noticed as limiting the legal validity of the transfer 
 of property. 
 
 3. We have now examined briefly the chief heads of 
 what may be called the " individualistic minimum " of 
 primary governmental interference so far as sane adults 
 alone are concerned : viz. ( 1 ) the Right of personal security, 
 including security to health and reputation, (2) the Eight 
 of private property, together with the Eight of freely 
 transferring property by gift, sale, or bequest, and (3) the 
 Eight to fulfilment of contracts freely entered into. We 
 have found, under each head, that speaking broadly the 
 kind of legislation which modern states agree to adopt, and 
 practical persons agree to recommend, is not capable of being 
 justified on the principle of taking Freedom in any ordi- 
 nary sense of the term as an absolute end. It requires 
 for its justification an individualistic maxim definitely 
 understood as a subordinate principle or " middle axiom " of 
 utilitarianism : i.e. that individuals are to be protected from 
 deception, breach of engagements, annoyance, coercion, or 
 other conduct tending to impede them in the pursuit of 
 their ends, so far as such protection seems to be conducive 
 to the general happiness. This conclusion will guide our 
 subsequent attempt to work out in more detail the concep- 
 tion of the " individualistic minimum " ; and it will also 
 be found fundamentally important when in Chapters IX. 
 and X. we come to consider the reasons for going beyond 
 this minimum. 
 
 not enforcing specific performance of contracts to render personal services, 
 viz. that the utility of the service to the recipient depends on qualities which 
 cannot be secured by legal coercion. E.g. a painter can be forced to paint a 
 picture, but he cannot be forced to paint such a picture as his customer, in 
 making the contract, desired to obtain. Still, if the end of Law were not 
 utility but the realisation of Freedom, and this were taken to include the 
 enforcement of contracts freely made, the logical course would be to enforce 
 specific performance, so far as possible, in all cases in which the promisee 
 desired it.
 
 56 ELEMENTS OF POLITICS CHAP. 
 
 We have now to observe that this utilitarian interpre- 
 tation of the individualistic principle is still more obviously 
 necessary when we proceed to deal with the fact that under 
 the actual conditions of human life no society consists 
 entirely of sane adults. Every society contains a large 
 number of persons with regard to whom the most thorough- 
 going individualist recognises the absurdity of maintaining 
 that they require no more from others than non-interference 
 and observance of contract : it is universally admitted that 
 some legal provision must be made for supplying lunatics 
 and children with the means of subsistence, and some 
 authority vested in some persons to restrain them from 
 actions mischievous to themselves as well as to others. 
 The case of children is, of course, by far the most import- 
 ant. Here, if we once admit that, with a view to the 
 general happiness, the burden of supporting, directing, and 
 training children must be legally placed somewhere, no 
 Individualist can doubt that it must be thrown on the 
 parents: since it would obviously be the gravest inter- 
 ference with an individual's freedom of action to compel 
 him to contribute to the support of an indefinite number of 
 his neighbours' children. 1 Indeed, we may say that a State 
 that had gone so far in the direction of communism as to 
 undertake the burden of providing for all the children of 
 its members could hardly stop short of completely com- 
 munistic institutions. To secure the effective performance 
 of parental duty, as thus denned, some provision for the 
 registration of births in the names of both parents would 
 seem to be required : but it is not easy to justify, on the 
 principle of absolute Freedom, the refusal, which is found in 
 the legal systems of all European communities, to recognise 
 any connubial contracts that do not contemplate a perma- 
 nent and monogamic union. Both this refusal, and other 
 restrictions on the free union of the sexes, such as the pro- 
 hibition of marriage between near relatives, are, I conceive, 
 
 1 It may be added that Individualism will clearly justify restrictions 
 on bequest in the interest of children, in the special case of children being 
 too young at the time of their parents' decease to provide for themselves.
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 57 
 
 only justifiable on the basis of utilitarian Individualism : 
 i.e. as indirectly necessary to provide for the due support 
 and education of children by their parents. The exact kind 
 of regulation which, from this point of view, would be most 
 expedient in a modern civilised society is, I think, impos- 
 sible to determine from any general consideration of human 
 nature, in which the inherited customs and sentiments that 
 actually govern the relations of the sexes in such societies 
 are left out of account. And since it seems to be funda- 
 mentally important, for the attainment of the general end 
 at which law aims in this department, that a strong unre- 
 flecting moral aversion should be felt for the conduct 
 legally prohibited, it would probably be inexpedient in 
 an elementary treatise to weigh the utilitarian argu- 
 ments for or against particular details of the marriage 
 law. It is sufficient to say generally that the individual- 
 istic legislator must judge all actual or proposed restrictions 
 on the free union of the sexes from the single point of view 
 that has just been indicated : in respect, that is, of their 
 tendency to secure due provision, control, and training for 
 children until they are old enough to become ordinary 
 members of an individualistic community. 
 
 Assuming the marriage union to be, under ordinary 
 circumstances, indissoluble, it seems necessary to maintain 
 by law the right of the husband to the society of his wife ; 
 and, on the other hand, to give the wife the right of obtain- 
 ing from her husband the means of subsistence, so far as 
 her own income from property or earnings does not suffice 
 for this purpose; either right being of course liable to 
 forfeiture on account of conjugal infidelity or other gross 
 misbehaviour. Whether it is desirable with a view to 
 " prevent domestic dissension or distrust " to go beyond 
 this in the way of extending the husband's control over the 
 wife's property or actions, and correspondingly extending 
 the protection given by law to the wife in case the husband 
 misuses his powers, is less easy to decide ; but we may say 
 that the burden of proof lies entirely with those who 
 advocate such further restrictions on freedom. As regards
 
 58 ELEMENTS OF POLITICS CHAP. 
 
 the definition of parental duties and rights, it seems clear 
 that on our principle the period of parental control 
 should not be prolonged beyond the time at which the child 
 reaches physical and intellectual maturity ; and that, as the 
 growth towards maturity is gradual, legal independence 
 should also be reached by degrees. It is more doubtful 
 whether it accords with the individualistic principle to 
 extend the legal duty of parents to children beyond that of 
 giving care and sustenance up to the time at which they 
 can earn their own living, and such training as will enable 
 them to earn it ; the point will be considered when we 
 come to deal with bequest and inheritance. 1 
 
 To sum up, I conclude that I am in harmony with 
 common sense in taking, as the fundamental basis of indi- 
 vidualistic legislation, the principle of mutual non-inter- 
 ference, understood in a utilitarian sense. On this view, 
 the general aims of individualistic legislation may be stated 
 as follows: (1) To secure to every sane adult freedom to 
 provide for his own happiness, by adapting the material 
 world to the satisfaction of his needs and desires, and 
 establishing such relations with other human beings as 
 may in his opinion conduce to the same end ; (2) to secure 
 him from pain or loss, caused directly or indirectly by the 
 action of other human beings including in this loss any 
 damage due to the non-performance of engagements made 
 without coercion or deception ; while (3) throwing on parents 
 the duties of care, sustenance, and education of children, 
 until they are able to provide for themselves, and regulating 
 family relations and to some extent the relations of the 
 sexes generally with a view to the better performance of 
 such parental duties. To the chief legal rights and duties 
 established under this last head I shall occasionally refer as 
 " family " rights and duties ; but, for the most part, I shall 
 abstain from examining them in any further detail. 
 
 4. Let us now proceed to consider more fully the 
 chief particular rights which the general right to non- 
 interference is found to include, when we seek to realise 
 
 1 Chap. VII.
 
 it under the actual circumstances of human life in 
 society. 
 
 The following appear to be the chief ways in which A 
 may interfere with B's interests or happiness otherwise 
 than by physical constraint or confinement, which I need 
 not further discuss: (1) By impeding his efforts to adapt 
 his material environment to the satisfaction of his needs and 
 desires : (2) by breach of contract : (3) by causing him 
 physical injury or discomfort : (4) by interfering with his 
 relations to other human beings : (5) by false statements, 
 leading him to act or abstain from acting in a manner detri- 
 mental to himself: (6) by moral coercion or intimidation: 
 (7) by causing him mental annoyance of some other kind. 
 In the chapters that follow I shall be chiefly concerned 
 with the rights and obligations to be established under the 
 first two heads : since the regulation of the use of material 
 things and especially of that exclusive use which is the 
 essence of property, and the determination of the condi- 
 tions of legally valid contracts, are the most important 
 topics in a general survey of civil law from a political point 
 of view. Contract is the main link by which the complex 
 system of co-operation that characterises a modern civilised 
 society is knit together : while the most marked differences 
 in the outward lives of ordinary members of a modern 
 society depend mainly on differences in the extent of their 
 rights of property ; and consequently the acquisition of pro- 
 perty is usually the most prominent aim of the actions of 
 such persons in their most important social relations outside 
 their own families. Under the remaining heads much 
 fuller discussion is needed, to work out a sufficiently 
 precise statement and adequate justification of the rules 
 practically required ; but of this further discussion, in such a 
 treatise as the present, only a brief indication can be given. 
 
 The general problem, presented to an individualistic 
 legislator in different forms under these different heads, is 
 that of adequately protecting A from loss, pain, or alarm, 
 caused by the action of B, without unduly annoying or 
 hampering B. In many cases experience alone can enable
 
 60 ELEMENTS OF POLITICS CHAP. 
 
 us to determine the best middle course to take between 
 opposite dangers : but we may note some of the general 
 considerations by which this course will be determined. 
 
 I. It is one of the most obvious duties of men living in 
 society to avoid causing physical injury or discomfort to 
 others : and where avoidable damage or serious annoyance 
 of this kind has been even unintentionally inflicted through 
 carelessness, there is a prima facie ground for exacting 
 adequate compensation from the doer to the sufferer of the 
 harm. 1 But we may reasonably go much further in re- 
 pressing acts of this kind, when demonstrably done with 
 intent to injure or coerce, than we ought to go in repressing 
 similar acts done without any such intention : partly be- 
 cause an act externally the same becomes indefinitely more 
 annoying and alarming when its intention is malevolent or 
 coercive, partly because it is not usually a severe or dan- 
 gerous restriction on any one's freedom of action to preclude 
 him from efforts to annoy or alarm others. For instance, 
 it may be slightly annoying to be pushed or jostled in a 
 crowd : but if this annoyance were treated as a wrong, 
 the care imposed by the duty of avoiding it under all 
 circumstances would be a much greater burden than the 
 annoyance it was designed to remedy ; we may, however, 
 reasonably treat as an offence any pushing or jostling with 
 intent to annoy. 
 
 II. The same point is important in considering how far 
 A is to be legally restrained from causing loss or annoyance 
 to B by interfering with his relations with other persons. 
 Here, however, we must first notice another distinction of 
 fundamental importance ; the interferer may either induce 
 other persons, in domestic or social relations with B, to 
 violate actual obligations, or he may merely induce them to 
 abstain from making agreements with B, or rendering him 
 services not legally due. The general expediency of pro- 
 hibiting the former kind of interference is obvious : a man 
 who knowingly commands or persuades another to commit 
 
 1 A more difficult case is that of pure accident without anything like 
 negligence. This will be discussed in a subsequent chapter (VIII. 2).
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 61 
 
 a wrong should be regarded as himself a wrong-doer. It 
 should be noted, however, that some qualification of this 
 principle is required in the case of breaches of contract : 
 so far as the strict fulfilment of contractual obligation 
 is properly not made legally obligatory in certain cases, 
 but only adequate pecuniary compensation for non-ful- 
 filment. 1 It would clearly not be right in such cases 
 to inflict any penalty on one who had advised a breach 
 of contract, unless he had also advised non-payment of 
 reasonable compensation, or unless his advice had been 
 given with a demonstrable intent to injure or coerce 
 the promisee. But in the case of contracts where strict 
 performance should be legally compulsory such as con- 
 tracts to pay money, 2 or transfer other wealth consistency 
 requires that the offering of inducements to break the con- 
 tract should be regarded as a wrong. 
 
 There is more difficulty where the acts to which the 
 interferer offers inducement are acts in themselves lawful, 
 though seriously damaging or annoying to B. For acts of 
 this kind are inevitable incidents of industrial competition. 
 E.g. to obtain the advantages of competition, in stimulating 
 and rewarding good management of business, A must be 
 allowed to persuade B's customers to desert him en masse, 
 and transfer their custom to A, even though the result may 
 be industrial ruin to B. Accordingly, in such a case it 
 seems right to have regard partly to the ulterior intention ; 
 if the interference damaging to B is designed to promote 
 A's business interests, in the ordinary course of the com- 
 petition for industrial prosperity, it must be treated as 
 legitimate if otherwise lawful in a society individual- 
 istically organised : but if its aim is demonstrably to injure 
 B, it may be regarded as falling within the class of inter- 
 ferences which if the mischief they cause be considerable 
 may be proper subjects for legal repression. 3 
 
 1 See note to p. 54 ; and Chap. VI. 5. 
 
 3 I do not here consider the general release from the obligation of debts 
 obtained through bankruptcy. See Chap. VI. 5. 
 
 3 The propriety of interference of this kind, when its aim is coercive with- 
 out being demonstrably malevolent, will be considered presently.
 
 62 ELEMENTS OF POLITICS CHAP. 
 
 One specially important mode in which a man's relations 
 to other human beings are liable to be injuriously affected 
 is by statements damaging to his reputation : at the same 
 time, a most important part of the mutual services which 
 the members of any society are capable of rendering consists 
 in pointing out defects in the character and conduct of 
 others. Here, accordingly, the problem of preventing as 
 far as possible injury to reputation without doing more 
 harm by restricting freedom of communication, is peculiarly 
 difficult. The simple solution of allowing true damaging 
 statements to be made but prohibiting false ones, is not 
 satisfactory : since to penalise every untrue damaging state- 
 ment, even though made in perfect good faith, would render 
 the functions of warning and criticism too dangerous ; on 
 the other hand, there are true statements of which the 
 publication would be clearly mischievous, as the pain and 
 bitterness caused by them would much outweigh their 
 utility in the way of warning. Perhaps we may distinguish 
 three classes of cases : 
 
 (1.) There are certain public occasions in which the 
 importance to the community of a full and candid utterance 
 of a man's belief seems to be so great as to outweigh entirely 
 the risk of harm to private reputations from such utterance. 
 Thus, according to English law, " the freedom of speech and 
 debate in Parliament " cannot be " impeached or questioned 
 in any place outside Parliament " ; again, an action will not 
 lie against a judge for words spoken by him judicially, nor 
 against a witness in any case for anything relevant said in 
 the course of judicial proceedings. And these securities 
 seem to be required for the due performance of legislative 
 and judicial functions. 
 
 (2.) In other cases in which it is, generally speaking, 
 clearly advantageous to society that men should com- 
 municate to others beliefs honestly entertained by them 
 respecting the character or conduct of third parties, such 
 statements, however injurious to the reputation of their 
 objects, should not entail a liability to legal penalties, 
 even if they turn out to be unfounded ; unless they can be
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 63 
 
 shown to have been made from some improper motive, or 
 with reckless disregard of the ordinary means of ascertaining 
 the truth. Examples of this class are confidential com- 
 munications about the character of a servant ; warnings 
 given by a solicitor to a client, or a guardian to a ward ; 
 " fair comments " on matters that have been brought 
 before the public. 
 
 (3.) In cases where there is no clear general probability 
 of any considerable advantage to society from the free com- 
 munication of candid opinions, the importance of protecting 
 individuals from damage to reputation would seem to out- 
 weigh the general considerations in favour of freedom of 
 speech. In such cases, even if a man utters his honest 
 opinion without malevolence, he should do so at the risk 
 of having to make reparation if any statement seriously 
 injurious to others should turn out to be false in any 
 material point. 1 
 
 III. A somewhat similar problem is presented in the 
 case of injury done to a man by false statements made not 
 about him but to him. If statements of this kind can be 
 shown to have been made with intent to mislead, it seems 
 clear that they as well as other deceptive acts should 
 be repressed by making the deceiver liable for any serious 
 damage caused by his deception. But if there is no 
 demonstrable intention to deceive, the question is less easy ; 
 since it would seriously hamper the freedom of human 
 intercourse if a man were held legally responsible for all 
 the harm done by statements made to other men without 
 an exact regard to truth. If, however, A makes statements 
 to B with the deliberate design of inducing him to act in 
 a certain way for the promotion of A's interests, it is 
 specially incumbent on him and not too much to require 
 that he should resist the temptation to make statements 
 which he does not know to be true, in the hope that they 
 
 1 It is more doubtful whether a man should be liable to be punished even 
 for true defamatory statements, unless he can show that it was for the public 
 benefit that they should be made ; but probably it should be illegal to make 
 such statements from malice, or with a view to private gain.
 
 64 ELEMENTS OF POLITICS CHAP. 
 
 may turn out to be so ; hence, in this case, not only con- 
 sciously false but grossly reckless statements, which actually 
 cause material damage, may fairly be regarded as wrongs 
 needing reparation. 
 
 IV. Under the head of moral coercion or intimidation, 
 a distinction has to be taken similar to that which has 
 already been pointed out in considering interference with 
 social relations. There can be no doubt that to cause alarm 
 by doing or threatening wrongful acts, or to endeavour by 
 any kind of threats to induce a man to do wrongful acts 
 or abstain from fulfilling definite duties, are wrongful inter- 
 ferences, which call for legal repression. But when A, by 
 threatening to do something in itself legitimate but 
 damaging or annoying to B, induces B to act in a manner 
 opposed to B's interests or inclination, but not involving 
 a breach of legal duty, it is a more difficult question how 
 far this kind of intimidation can properly be regarded as 
 a legal wrong from an individualistic point of view. We 
 can hardly lay down that an intention to coerce renders an 
 act wrong which would otherwise be legitimate, no less 
 than an intention to injure. For there are many cases in 
 which a coercive intent is also plainly beneficent, either in 
 the interest of the person coerced or of the community : as 
 when a father notifies to a son that he will lose a legacy 
 if he runs into debt, or when persons are restrained or re- 
 claimed from vice by fear of exclusion from social relations. 
 It would be paradoxical to regard such warnings and 
 exclusions as wrongs, merely because they are intended to 
 be coercive. Again, coercion of a certain kind is a natural 
 incident of commercial exchanges : the buyer forces the 
 seller to lower his price by refusing to buy, and vice versa. 
 All we can say is that, whenever the direct or main intent 
 of any action is to induce a man by fear of damage to do 
 what, apart from such inducement, he would consider to be 
 opposed to his interest, the action is at least of doubtful 
 legitimacy from an individualistic point of view ; in fact, 
 cases similar to those above mentioned may easily be found 
 which would be generally disapproved ; e.g. if a father were
 
 iv INDIVIDUALISM AND INDIVIDUALISTIC MINIMUM 65 
 
 to warn a son that he would lose a legacy if he did not 
 join the Church of Eome, or if an employer were to give 
 notice that he would engage no workmen who declined 
 to take a pledge of abstinence from tobacco. So again, a 
 trader would be widely censured who sold his goods at un- 
 remunerative prices in order to drive another trader out 
 of the business. In short, conduct of this kind lies on the 
 ambiguous margin between what an individualistic code 
 should allow and what it should prevent : and it cannot 
 be said to be contrary to the individualistic principle to 
 subject such conduct to legal repression in any special case 
 in which a demonstrably coercive intention was combined 
 with mischievous results provided that this special case 
 could be clearly defined and distinguished from other cases. 
 A particular case that is free from difficulty is where the 
 act threatened is one that either ought not to be done at 
 all, or ought to be done with a view to the public benefit ; 
 such as an accusation of crime. The wrongfulness of 
 threatening an act of this kind with a view to private 
 gain, to be obtained by inducing persons whom it might 
 harm to purchase the threatener's silence, is easily recognised 
 and defined. Another case that specially invites the legis- 
 lator's attention, as specially menacing to the freedom of 
 individuals, is where a number of persons combine to in- 
 timidate by threatening acts which, though not illegal apart 
 from their coercive purpose, are demonstrably threatened 
 and carried out for this purpose. 1 
 
 V. It remains to consider how far the causing of mental 
 annoyance, without demonstrably malevolent intention, is to 
 be regarded as an interference which law ought to prevent. 
 Reflection will at once show that we cannot hope to prevent 
 this with anything like completeness. B may be offended 
 by the colour of A's dress or the cut of his beard, his 
 movements in public, or the expression of his opinions and 
 sentiments ; but it is obvious that the attempt to shield 
 B completely from annoyance thus caused would involve 
 tenfold more vexatious interference with A. Experience 
 
 1 This case will be further discussed in a subsequent chapter (XXVIII.). 
 
 F
 
 66 ELEMENTS OF POLITICS CHAP, iv 
 
 alone can enable us to determine roughly what kinds of 
 sensibility to mental annoyance are so keen and widely 
 spread as to render governmental interference desirable for 
 their protection. It is to be observed that in many cases 
 mental annoyance is commonly combined with harm or 
 loss of some other kind. This is the case with attacks 
 on reputation, which we have already considered : and in 
 other important cases of offensive and annoying acts pro- 
 hibited by law in modern civilised communities, we find 
 that such acts have at least an indirect tendency to cause 
 a violation of some legal rule that rests on other grounds. 
 Thus indecency is prohibited because the sentiment it 
 offends is indirectly protective of the institution of the 
 family ; and I conceive that the primary aim of law in 
 prohibiting blasphemy is not merely to prevent the mental 
 pain it causes to believers in the established religion, but to 
 prevent religious beliefs from being weakened, on account 
 of their importance to social order.
 
 CHAPTEE V 
 
 ON PROPERTY 
 
 1. IN the present chapter I propose to consider the main 
 regulations in respect to Property which a consistent legisla- 
 tion on the basis of utilitarian individualism will include. 
 
 It will be convenient first to take the common notion of 
 the " Eight of Property " and analyse it into its elements : 
 and, so far as these elementary rights are separable, to 
 observe the different grounds for maintaining them separ- 
 ately or in combination in different cases. For clearness, 
 we will, in the first instance, limit our consideration to 
 property in material things. 
 
 We may begin by observing that the most widely 
 extended right secured to members of an orderly community 
 in respect of material things is merely a right to use 
 transiently, to make the material thing a means to the 
 satisfaction of needs and desires, not necessarily combined 
 with any power to exclude another from using the same 
 thing immediately afterwards, or even at the same time, 
 so far as this second use does not actually impede the first. 
 The obligation corresponding to this right is merely that 
 of not interfering with actual use. And in the case of 
 things of which the utility does not result from human 
 labour, and which can be used simultaneously or success- 
 ively by an indefinite number of persons, without any 
 considerable amount of mutual interference, our principle 
 can only justify us in securing to individuals unhampered 
 and not exclusive use. Thus, if a piece of land is most 
 
 67
 
 68 ELEMENTS OF POLITICS CHAP. 
 
 useful on the whole as an area for common recreation, 
 it is obviously inexpedient to allow it to be appropriated 
 in separate portions for the separate use or enjoyment 
 of particular individuals. Considerable portions of the 
 earth's surface have, in the most civilised societies, been 
 kept out of private ownership for this reason. 1 
 
 It is not, however, the mere right of unhampered use 
 which constitutes the most essential element in the Eight 
 of Property, as commonly conceived : but the right of 
 exclusive, use. This is always implied in the idea of 
 appropriation : but the obvious utilitarian grounds for it 
 are different in different cases. Some kinds of things 
 such as food if used as such at all, can only be used once, 
 and therefore by a single individual : so that the undis- 
 turbed use of them is impossible without appropriation. 
 In other cases it is obvious that at any rate the most 
 effective use of the material thing in question either for 
 immediate enjoyment or as an instrument or material for 
 producing things directly consumable requires that the 
 user should have the legal right of excluding other persons 
 from any similar use of the thing, or any action materially 
 affecting its physical condition, at least for a considerable 
 period of time. If a field is to be used for the cultivation 
 of crops it is obviously expedient, even in a primitive con- 
 dition of agriculture, that it should be under the exclusive 
 control of one person or of a group of persons acting in 
 concert at least during the time that intervenes between 
 one harvest and another : and as the art of agriculture 
 develops, the requisite period of exclusive control continu- 
 ally tends to become longer. 
 
 More often, however, the ground for legalising the ex- 
 clusive use of material things does not lie in the fact that 
 the things are thus obviously made more useful, but in the 
 fact that their existence in the form on which their 
 
 1 In the case of land, such a right of unexclusive use may be retained for 
 certain purposes, while appropriation is allowed of other utilities derivable 
 from the land as when A owns land, but a right-of-way over his land is 
 secured to the world at large.
 
 ON PROPERTY 69 
 
 utility depends is due to labour spent in producing and 
 guarding them, which would not have been expended if the 
 labourer had not been able to count on the exclusive enjoy- 
 ment of his results : and it is, as we have seen, from this 
 point of view that the right of property is commonly 
 justified by Individualists. But, whatever its rationale may 
 be, it is this right of excluding all others permanently from 
 interference with a particular portion of matter, which we 
 have to regard as the most essential element in the Eight 
 of Property in material things. 
 
 We may observe that in the case of non-exclusive no 
 less than of exclusive use, the protection from interference 
 which law gives to the user may be of an indirect kind. 
 Thus, where the water of a stream is used to turn the 
 wheels of a succession of water-mills in its descent, it would 
 be obviously inexpedient to allow the water to become the 
 property of any of the millowners : but in order to encourage 
 them to make the water useful in this way it is expedient 
 to protect them against a diversion of the course of the 
 stream at any point above their mills. And on similar 
 grounds the owner of a house is not merely protected 
 against the forcible entry of a stranger, but for the loss 
 of utility caused by the pollution of the surrounding 
 atmosphere. How far such protection of A from indirect 
 interference should be given, where it involves a material 
 restriction on the freedom of action of other persons, can 
 only be settled in any particular case by a careful balance 
 of conflicting inconveniences. 
 
 We have already noticed that the utilities of some 
 things such as food and fuel are completely exhausted 
 in a single use ; sometimes, again, as in the case of clothes, 
 ordinary use involves gradual deterioration. In either case 
 it is not practicable to separate the Eight to use the thing 
 from the Eight to destroy it, totally or partially : and, 
 accordingly, this latter right is included in the common 
 notion of the right of property. If, however, in the normal 
 and proper use of a thing it either does not tend to be 
 deteriorated, or tends to have its original utilities continually
 
 70 ELEMENTS OF POLITICS CHAP. 
 
 restored, it is possible and may be expedient to secure to an 
 individual the exclusive use of it for life or a term of 
 years, without also allowing him to destroy or deteriorate 
 it. Thus, when land used for agricultural purposes is let 
 on lease, some provision against deterioration is generally 
 expedient. 
 
 Finally, the right of property is commonly held to include 
 the Right to Alienate by gift or exchange during life ; and 
 perhaps also the Eight to Bequeath. But either of these 
 may be separated from the right of exclusive use : in fact, 
 this separation is not unusual when the right of exclusively 
 using a thing of comparatively permanent utility is limited 
 in time. The application of the term " Property " to a 
 right so limited is perhaps unusual, but I think it is more 
 convenient to use the term, with a qualification, in this 
 wider sense. If the right of deterioration and the right of 
 alienation are withheld, the right of bequest is usually 
 withheld along with them ; in which case the right of 
 ownership is reduced to the right of exclusive use during 
 life or for a term of years. At the same time, as was 
 before observed, freedom of bequest is a much more dubious 
 deduction from the general principle of Individualism than 
 freedom of use or of alienation during life ; I have there- 
 fore thought it most convenient to treat the right of be- 
 quest separately. I shall accordingly mean by the " Eight of 
 Property " when used without qualification the complete 
 right of exclusive use, including the right to destroy and the 
 right to alienate ; but not necessarily the right of bequest. 
 
 2. I now pass to consider how this right of property 
 should be acquired. In the first place, it is clear that in 
 a modern society where the right of property including the 
 right of transfer by sale or gift and regulations determining 
 the succession to property after the owner's death, are fully 
 established, the most important part of the material wealth 
 owned at any time will have been obtained by transfer 
 during life or inheritance. The conditions under which 
 such transfer should be allowed, and regulations for bequest 
 and intestate inheritance, will be considered separately here-
 
 ON PROPERTY 71 
 
 after : at present, therefore, I confine myself to the con- 
 sideration of the legitimate origin of property in things not 
 yet appropriated. We have seen that the moral right to 
 the produce of one's labour constitutes, in the individualistic 
 view, the principal justification and basis of legal rights of 
 property. But simply to place this moral right under the 
 sanction of law, by laying down a general legal rule securing 
 to each individual the results of his labour, would be 
 obviously inadequate : for a man does not create matter 
 by his labour, but only modifies it : and the fact that he 
 has spent his labour on material to which he had no right 
 could at most give him a right to an equivalent for the 
 additional utility that it has thereby acquired. It is 
 necessary, therefore, in a system of law, to determine how 
 the individual's rights stand in relation to matter before it 
 is modified by labour. 
 
 Here, first, it is to be observed that a thing may require 
 search, or pursuit, and perhaps the exercise of skill or 
 strength in capture, in order that it may be obtained 
 and used for human purposes ; and that then the labour 
 of seeking or hunting is really invested in the thing before 
 it comes into a man's possession. On this ground, as was 
 before said, the simple rule of appropriating the thing 
 so found or captured to the individual finder or capturer 
 is an unexceptionable application of the individualistic 
 principle, provided that other men's opportunities of obtain- 
 ing similar things are not thereby materially diminished. 
 The thing with all its utilities is not an excessive reward 
 for his labour, if any one else can get as much by similar 
 labour. It is therefore reasonable that wild animals, that 
 are not in any degree the product of human labour and 
 care, should belong to those who have effected their capture : 
 and that other things admitting of being moved and carried 
 off should unless they have already been appropriated, 
 or are found upon or in appropriated land become the 
 property of those who have first physically seized them. 
 But in the case of most useful inanimate things human 
 labour is primarily required not for search or capture, but
 
 72 ELEMENTS OF POLITICS CHAP. 
 
 to foster their growth on the surface of the soil, or to 
 extract them from beneath the surface : thus, in order to 
 obtain them it is necessary that the land should be 
 appropriated, at least temporarily, to the exclusive use of 
 the labourer : and the question is how this can be done 
 without encroachment on the rights of other persons. 
 
 In a country as fully populated as the civilised countries 
 of Europe are, appropriation has already gone so far that 
 this question does not arise in any simple form : l it is, 
 therefore, most convenient to consider it in reference to 
 land in a country newly colonised. How shall we decide 
 how much land any individual in such a country is to be 
 allowed to take possession of ? The most obvious answer is, 
 as Locke suggests, that each may appropriate as much as he 
 can really occupy and effectively use. But, first, as I have 
 elsewhere said, 2 "the use of land by any individual may 
 vary almost indefinitely in extent, diminishing proportionally 
 in intensity e.g. it would be absurd to let any individual 
 claim possession of the whole ground over which he could 
 hunt, as against another who wished to use it for pasturage : 
 but if so, ought the shepherd, again, to have possession as 
 against a would-be cultivator, or a cultivator as against a 
 would-be miner." Even if such difficulties as these could 
 be overcome, a more fundamental objection would remain, 
 viz. that the condition necessary to justify appropriation of 
 any utilities on the individualistic principle that other 
 men's opportunities of obtaining similar utilities were not 
 materially diminished would soon become impossible to 
 fulfil : newcomers would find no land as good as that which 
 had been first appropriated. It must be admitted that 
 private property in land involves a substantial encroachment 
 on the opportunities of applying labour productively which 
 were it not for such appropriation would be open to 
 
 1 It is true that the transfer of common land to private ownership is a 
 process still going on in England : but the land that is thus transferred is 
 already the subject of definite rights belonging to a particular group among 
 the members of the community, and cannot be appropriated without the 
 consent of a definite proportion of this group. 
 
 2 Principles of Political Economy, bk. iii. ch. iv. 12.
 
 ON PROPERTY 73 
 
 individuals now landless : on the other hand, appropriation, 
 at least for a term of years, is manifestly required, on the 
 principle of utilitarian Individualism, to stimulate and 
 reward the most energetic and enlightened application of 
 labour to land. It would seem, therefore, that the only 
 practicable application of our principle is to allow the 
 requisite appropriation but to secure adequate compensation 
 for the encroachment involved in it. The precise extent 
 to which appropriation should be allowed, and the manner in 
 which the compensation is to be taken, are questions that 
 have to be decided, I conceive, by a careful balance of expedi- 
 encies. The simplest plan would be to sell the land freely 
 to the highest bidder for what it would fetch, and invest the 
 proceeds for the permanent benefit of the community. But 
 it cannot be said that the individualistic principle requires 
 the method of sale to be adopted rather than the method 
 of lease : and as land tends to increase in value as a country 
 becomes more densely populated, it seems probable that 
 the prospective increase of value, accruing independently 
 of the owner's energy and enterprise, will not be adequately 
 represented in the sum received for the sale of the land ; 
 so that the compensation thus directly secured to future 
 generations, for the opportunities from which they are 
 excluded, is not likely to be adequate. On the other hand, 
 it is for the general good that the individual cultivator's 
 energy and enterprise should be encouraged as much as 
 possible, and complete ownership is the most simple and 
 effective way of encouraging it. What scope is to be allowed 
 to those opposing considerations cannot, I conceive, be deter- 
 mined without special experience : and in practically decid- 
 ing the question we should have to take into account the 
 moral and intellectual qualities likely to be possessed by 
 the government that, if the system of leases be adopted, 
 will have the delicate task of artificially providing for the 
 lessee that encouragement of industry and thrift which the 
 system of private ownership gives him naturally. 1 
 
 1 It is to be observed that I am here only dealing with the application of 
 Individualism to land-tenure in a new country. The question whether land
 
 74 ELEMENTS OF POLITICS CHAP. 
 
 So far we have been considering the arrangements ex- 
 pedient for a community dealing with newly-occupied land. 
 But it would seem that our judgment on proposals for 
 taking land back into the possession of the community in 
 a district where it has, in the main, been completely appro- 
 priated ought reasonably to be determined by the same 
 kind of considerations, with the very important differ- 
 ence, that in the latter case we have to take into account 
 the cost of compensating existing proprietors. 1 
 
 3. To whatever extent the surface of the earth is 
 rightly appropriated to the exclusive occupation of indi- 
 viduals, its vegetable, products will, of course, belong primarily 
 to the occupier ; as generally speaking no one else can 
 enjoy them without his consent : and so far as their growth 
 is altogether due to human exertion and care, or admits of 
 being materially aided thereby, the encouragement of such 
 labour and care is, as we have seen, a main ground justifying 
 the appropriation of the soil. So again, where the labour 
 and care of the occupier is directly applied to tame animals 
 that feed on the natural produce of the soil, the appropria- 
 tion to him of the progeny of the animals is similarly 
 justified. By " tame " animals we mean such as are 
 normally within the control of some man, so that they can 
 at any time be physically taken into possession by him : 
 if they stray beyond his control, it is through accident or 
 the enticement of other men, and their ownership is 
 normally ascertainable by some natural or artificial mark. 
 It is obvious that the exclusive use of such animals may 
 be appropriated to individuals without much more difficulty 
 than that of inanimate things. The case is different with 
 animals which we call " wild," i.e. which require some 
 process of capture, uncertain in its results, before a man 
 can take possession of them. 2 Still, if their existence is 
 
 should be granted on easier terms to encourage emigration belongs to a later 
 part of the discussion. See Chap. X. on "Socialistic Interference." 
 
 1 See Chap. XII. 
 
 2 The criterion adopted by the Romans for distinguishing " tame " from 
 "wild" animals and widely followed in modern law was the "animus 
 revertendi." A creature that had a "disposition to return " after straying
 
 ON PROPERTY 75 
 
 entirely or largely due to the labour applied by the 
 holder of the land, our general principle will justify us 
 in prohibiting other men from taking possession of them, 
 so far as their ownership is clearly ascertainable as (e.g.} 
 if they belong to a particular rare species. Where this 
 ascertainment is practically impossible, the prohibition 
 would be futile: but even then, so far as they can be 
 prevented from straying, their exclusive use is indirectly 
 secured by appropriating the land. It is, however, obvious 
 that in the case of land whose only useful produce consists 
 in wild animals and vegetables, capable of living and 
 thriving without human labour or protection, one main 
 argument for allowing appropriation is absent. Still, the 
 appropriation of such land assuming a fair compensation 
 for the utilities thus withdrawn from the community 
 seems to be a legitimate application of the individualistic 
 principle, provided that its appropriation tends materially 
 to increase the utility obtainable from such land : in 
 considering which we have to take into account the enjoy- 
 ment derived from hunting wild animals, as well as the 
 utility of the animals when captured. The theoretical 
 question is simply whether the whole amount of utility 
 obtainable when the land is allotted to the exclusive use 
 of individuals, is clearly greater or less than the whole 
 amount of utility that may be expected to result from 
 leaving it common : but, of course, in any concrete case 
 the balance of utilities may be difficult to ascertain. 1 
 
 4. There is no necessity that the appropriation of the 
 surface of land should carry with it an exclusive right to 
 extract the minerals which lie below the surface ; and their 
 existence is obviously not in any way due to the labour and 
 care of the individual who has appropriated the surface, or 
 
 was tame : if it had no such disposition it was wild. It might have it and 
 lose it : it then relapsed into its natural wildness. It seems to me, however, 
 that it is rather the owner's prospect of getting possession of the animal than 
 its own state of mind which is primarily important from a utilitarian point 
 of view. 
 
 1 The question how far market value, can be taken as a measure of utility 
 will be discussed later. Cf. Chap. X. 6.
 
 76 ELEMENTS OF POLITICS CHAP. 
 
 of any subsequent owner. If, indeed, such minerals are of a 
 common kind, it would be a needless and vexatious interfer- 
 ence with the freedom of the owner of the surface to prevent 
 him from appropriating them ; since he cannot thereby gain 
 any material advantage which might otherwise have been 
 enjoyed by other members of the community. If, however, 
 the minerals are at once so rare and useful that a consider- 
 able extra value is obtainable by the labour spent in 
 extracting them, as compared with other labour, it is hardly 
 in accordance with our principle, that this extra value 
 should be appropriated by any one member of the com- 
 munity, to the exclusion of the rest ; except so far as it 
 is needed as a reward for the labour that has to be spent, 
 on the average, in searching for the rare mineral. This 
 last consideration is of course important : and since 
 the owner of the surface is generally in the best position 
 for ascertaining what lies beneath it especially if he is 
 allowed to extract common minerals there is an obvious 
 utility in allowing him to appropriate even the rarer and 
 more valuable contents of the earth ; since the total 
 amount extracted will thus tend to be increased to the 
 advantage primarily of the producer, but indirectly of 
 others also. Whether this gain to the community is likely 
 more than to compensate for the loss of the extra value 
 of rare minerals which the government might secure, in 
 whole or in part, if property in the surface were strictly 
 separated from property in the contents, is a question which 
 only experience can enable us to answer ; and which may 
 perhaps require a different answer in reference to different 
 minerals, and different social and industrial conditions. The 
 same may be said as to the expediency of providing for the 
 contingency that the owner of the surface may not be well 
 qualified either to ascertain the presence of minerals hidden 
 some way below the surface, or to decide whether their 
 extraction will be remunerative. Such provision may be 
 made, in accordance with our principle, by retaining for 
 members of the community generally the right of extract- 
 ing minerals from land which, for ordinary purposes, has
 
 ON PROPERTY 77 
 
 been allowed to pass into private ownership ; under con- 
 dition of paying adequate compensation to the owner of the 
 surface, and avoiding certain parts of his land where their 
 operations would be likely to cause special inconvenience. 
 
 The exact determination of the limits of private and 
 common property in land is, as we have seen, a matter 
 which has to be settled by the aid of special experience on a 
 balance of conflicting considerations ; it has, in fact, varied 
 very much in different ages and countries in which private 
 property in moveables has been completely established. 
 There are, however, important and extensive portions of the 
 earth's surface which individuals have never been allowed 
 to claim for their exclusive use, their utility being clearly 
 greater when they are not appropriated. Among these are 
 the portions which are covered by the sea or by navigable 
 rivers. But since the boundaries of these portions are not 
 permanently fixed, but in many cases change continually 
 though, for the most part, very slowly a question arises 
 as to the ownership of the strips of dry land that are from 
 time to time won from this watery region : and it may be 
 instructive to consider briefly the general rules for deciding 
 this, as illustrating the limits of Individualism from a 
 utilitarian point of view. If such accessions to terra firma 
 take place by the mere action of natural forces, and cannot 
 be materially aided by human labour, it is obvious that no 
 individual can have a claim to them, and that the increment 
 of value which the neighbouring lands receive through the 
 change ought to belong to the community. So far, on 
 the other hand, as the acquisition or maintenance of the 
 new land requires labour, it is reasonable to let it become 
 the property of those who are in the best position to apply 
 the required labour, that is, generally speaking, of the 
 proprietors of the neighbouring land, unless uniformity of 
 action is on special grounds desirable, as may be the case 
 with low land protected by dykes. 
 
 5. So far we have been considering the Eight of 
 Property, according to the commonest conception of it, as 
 implying the right to exclusive enjoyment of the entire
 
 78 ELEMENTS OF POLITICS CHAP. 
 
 aggregate of utilities derivable from some portion of matter. 
 Before leaving the subject we may observe that rights 
 coming under the general head of property may be created 
 by division into fragments, if I may so say, of the permanent 
 right of exclusive use of some material thing. Such 
 division may arise, in the first place, by mere limitation in 
 time of the right of exclusive use ; which will, of course, 
 involve a corresponding limitation of the right to alienate 
 or bequeath, and a withdrawal of the right to destroy or to 
 deteriorate, except so far as some degree of deterioration 
 is involved in the normal use of the thing. In the case of 
 moveables generally, this is the only division of utility 
 which can, from the nature of the case, be conveniently 
 introduced ; but in the case of land, certain special uses and 
 advantages may be, and frequently are, secured separately 
 to individuals who do not own the remainder: such as 
 the right of hunting or fishing on the land of another, 
 the right of pasturing cattle, of digging turf, etc. In the 
 historic development of private property in land, such par- 
 ticular rights of use may have come into being as relics of 
 a general right to share the utilities of land not completely 
 appropriated, secured by custom to the cultivators of the 
 neighbourhood. But in the modern community that we 
 are now contemplating as organised on the individualistic 
 principle, such a separation of utilities would only arise by 
 consent, except in the case of utilities which it is clearly 
 to the advantage of the community to reserve to the public : 
 such (e.g.} as rights-of-way. 
 
 Another important class of rights of property, in which 
 the objects appropriated are not material things, are those 
 rights to non-imitation, by which the results of intellectual 
 labour are protected ; whether these results are of the nature 
 of technical invention, secured by patent, or literary pro- 
 ducts secured by copyright. As I have already said, though 
 the legal interference with the actions of other men required 
 to protect these rights is of a very peculiar kind, it seems a 
 clear application of the individualistic principle ; so far as 
 it is indispensable for giving the needed encouragement to
 
 ON PROPERTY 79 
 
 industry, and is limited to results at which the persons pro- 
 hibited from imitation could not possibly have arrived by 
 independent effort. But in the case, at least, of patents, it 
 is very difficult to prove this impossibility. " It is almost 
 always within the limits of human probability that in pro- 
 tecting a technical invention we may be preventing the use 
 of a similar invention which might otherwise have been 
 made by some one else ; indeed such coincidence of inven- 
 tions may even be said to be positively probable, wherever 
 several ingenious minds are simultaneously pondering over 
 the best method of meeting some definite technical need." ] 
 Hence patents generally must, I think, be regarded as involv- 
 ing some chance of encroachment on the opportunities of 
 others, which must be supposed to increase as time goes on ; 
 and this seems a valid argument, from an individualistic 
 point of view, for limiting the duration of this kind of 
 property. In the case, however, of literary products, this 
 difficulty is to a great extent absent ; it arises only, if I 
 may so say, on the margin of the right, in considering the 
 exact degree of resemblance which ought to be held to con- 
 stitute an infringement of copyright. There can be no 
 encroachment on the opportunities of others in a prohibi- 
 tion to reprint Samlet ; though it may be doubtful how 
 far, if the copyright of Shakespeare's plays were in force, 
 another treatment of the same plot ought to be interfered 
 with. For this reason, any limitation of the duration of 
 copyright to a period falling short of the author's life is 
 not defensible on individualistic principles. Even the limita- 
 tion actually established in our own and other systems of 
 law, by which copyright ceases at a certain time after the 
 author's death, requires a special utilitarian justification : 2 
 since the mere fact that the utility produced by a certain 
 kind of labour cannot be adequately protected without 
 legally prohibiting imitation, is not in itself a reason why 
 such utilities should be less completely or permanently at 
 the disposal of the labourer. 
 
 1 principles of Political Economy, book iii. chap. iv. sect. 6. 
 2 See Chap. X. 5.
 
 8o ELEMENTS OF POLITICS CHAP. 
 
 For completeness it should be noticed that there are 
 other kinds of rights besides those discussed, which are 
 commonly regarded as rights of property and for ordinary 
 purposes, rightly so regarded, as being both valuable and 
 transferable, and so substantially equivalent to a certain 
 amount of material wealth. Of these the most important 
 class are rights to receive money, which belong to the 
 class of rights arising out of contract, to be discussed in 
 the next chapter. It may be noted further that we may 
 even properly count as a part of a man's wealth a habit or 
 tendency of action on the part of others which is advan- 
 tageous to him, even though it is not in any way enforced 
 by law, provided it is transferable: as (e.g.} the so-called 
 " good- will " of a business. The only political question 
 of importance that arises with regard to this species of 
 private wealth is how far Government can rightfully diminish 
 or destroy it without compensation, by some action otherwise 
 legitimate. 1 
 
 6. Hitherto I have been treating of things that have 
 not yet been appropriated. Whatever has once become 
 property usually continues in this condition, so long as it 
 has any value ; being transferred, as we have seen, by sale 
 or gift during life, or through inheritance at death. In 
 exceptional cases, however, it may happen that what A has 
 thrown away as useless may be thought useful by B ; if this 
 is the case, it is obvious that B should be allowed to 
 appropriate it. 
 
 We have now completed our survey of the chief modes 
 of legally acquiring rights of property, apart from transfer 
 by consent, and succession through bequest or intestate 
 inheritance, with which the two following chapters will 
 be concerned. But an important question still remains. 
 Suppose a man is found dealing with a thing as his own 
 without being able to prove that he has ever legally acquired 
 property in it : what is to be his legal position ? When 
 we consider the numerous ways in which evidence of legal 
 title may accidentally fail, it becomes evident that, for the 
 1 See Chap. XII.
 
 ON PROPERTY 8 1 
 
 sake of peace and security, the actual possessor of anything 
 must be recognised as having the rights of a proprietor, 
 unless there is positive evidence to show that it legally 
 belongs to some other person or has been wrongfully with- 
 drawn from public use. And, for the sake of security, to 
 free men from the apprehension of unknown claims at any 
 time arising, it seems necessary to go further, and recognise 
 the claim of ancient bond fide possession, even against a 
 title of a different kind, after a certain interval of time 
 has elapsed during which no assertion of this other title 
 has been put forward. This interval should be sufficiently 
 long to leave ample time for the assertion of claims in 
 ordinary cases, but not longer than is required for this 
 purpose. 
 
 So far I have supposed the possession to be bond fide. 
 Generally speaking, this condition should be strictly main- 
 tained, since there is no sufficient reason for ever putting 
 an end to the insecurity of a consciously wrongful holder of 
 property: if such a person desires the peace of an honest 
 man, he should confess and repair his wrong. Only some- 
 times after revolutions or civil disorders even ill-gotten 
 gains have to be guaranteed to the possessors, for fear lest 
 a too widespread apprehension should lead to a renewal of 
 the disorder. 
 
 NOTE. The difficult question whether a good title should ever be allowed 
 to arise by transfer out of a bad one as in the case of an innocent purchaser 
 of stolen property will be discussed subsequently under another head.
 
 CHAPTEE VI 
 
 CONTRACT 
 
 1. IN a summary view of the civil order of society, as 
 constituted in accordance with the individualistic ideal, 
 performance of contract presents itself as the chief positive 
 element, protection of life and property being the chief 
 negative element. Withdraw contract suppose that no 
 one can count upon the fulfilment of any engagement and 
 the members of a human community are atoms that cannot 
 effectively combine ; the complex co-operation and division 
 of employments that are the essential characteristics of 
 modern industry cannot be introduced among such beings. 
 Suppose contracts freely made and effectively sanctioned, 
 and the most elaborate social organisation becomes possible, 
 at least in a society of such human beings as the individual- 
 istic theory contemplates gifted with mature reason, and 
 governed by enlightened self-interest. Of such beings it is 
 prima facie plausible to say that, when once their respec- 
 tive relations to the surrounding material world have been 
 determined so as to prevent mutual encroachment and 
 secure to each the fruits of his industry, the remainder of 
 their positive mutual rights and obligations ought to 
 depend entirely on that coincidence of their free choices, 
 which we call contract. Thoroughgoing individualists 
 would even include the rights corresponding to govern- 
 mental services, and the obligations to render services to 
 Government, which we shall have to consider later : only 
 in this latter case the contract is tacit. According to 
 
 82
 
 CHAP, vi CONTRACT 83 
 
 this view, an enlightened Englishman is a person who 
 resists the 
 
 " Temptations 
 To belong to other nations," 
 
 because the Government of his country gives him a fairly 
 good bargain in the way of governmental services, includ- 
 ing enjoyment of public property ; in return for which 
 advantages he has tacitly undertaken to pay the taxes that 
 Parliament determines, serve on a jury if required, become 
 a special constable if called upon in case of a riot, and 
 otherwise render to Government such services as the law 
 enjoins. This doctrine I do not now examine ; l I only 
 refer to it to show the far-reaching importance of the 
 notion of contract in the individualistic view of the 
 organisation of society. 
 
 What we have now to do is to discuss the chief condi- 
 tions by which the legal enforcement of ordinary civil 
 contract has to be restricted, in order that the function 
 assigned to it in the individualistic ideal of society may be 
 performed most effectively, and with least attendant mischief. 
 But, before we proceed to this, we must notice an important 
 ambiguity in the meaning of the term contract. In its 
 widest sense the (legal) term contract denotes any act in 
 which " there is a concurrence of two or more wills in pro- 
 ducing a modification of the legal rights of the parties 
 concerned." '' It includes, therefore, those transfers of 
 property by consent which were mentioned in the preceding 
 chapter ; which, of course, affect not only the mutual legal 
 relations of the contracting individuals but also their relations 
 to other members of the community. " Thus, if a man goes 
 into a shop and buys a watch for ready money, a contract 
 has taken place. The watchmaker and his customer have 
 united in a concordant expression of will, and the result has 
 affected once for all their legal rights." Previously to the 
 transaction all other members of the community were legally 
 
 1 See Chap. XIV. 4. 
 
 2 This quotation, and those which follow in this section, are taken from 
 Professor Holland's Jurisprudence, chap. xii.
 
 84 ELEMENTS OF POLITICS CHAP. 
 
 bound to abstain from handling the watch without the 
 watchmaker's consent, and to compensate the latter for any 
 injury that might be caused to the watch through their 
 negligence; henceforward it is the customer whose consent is 
 required, and to whom compensation will be due. In short, 
 the agreement of these two persons has affected what jurists 
 call their "rights in rem"; i.e. rights corresponding to obliga- 
 tions imposed on other members of the community generally. 
 
 But in its narrower and more usual sense the word 
 contract denotes an agreement that only confers what 
 jurists call a " right in personam " ; i.e. a right correspond- 
 ing to an obligation imposed only on a particular individual. 
 E.g. " Suppose that instead of the instantaneous sale of the 
 watch, the agreement has been merely for its purchase at a 
 future day " ; in this case there is a contract that does not 
 transfer the ownership of the watch, but merely imposes on 
 the watchmaker an obligation to sell the watch at the time 
 and for the price agreed upon, and gives the customer a 
 corresponding right, capable of being enforced against the 
 watchmaker, but not directly affecting his legal relations 
 with other persons. 
 
 Now, from the point of view of formal jurisprudence the 
 difference between the two kinds of agreements is doubtless 
 fundamental But in a general discussion of the functions 
 of government, the distinction appears to me to have only 
 subordinate and secondary importance. We have already 
 had occasion to notice that if rights in personam are 
 valuable and transferable, they come to be regarded for 
 practical purposes as a kind of property : under ordinary 
 circumstances, my control over " money in the bank " 
 being practically as complete as my control over money 
 in my purse, I naturally think of the two " moneys " as 
 property of the same kind though differently situated : 
 it is indifferent to me that in the former case my legal 
 right only consists in an obligation imposed on the banker 
 to pay me coin or bank notes on demand, while in the 
 latter case the world at large is under an obligation to 
 refrain from meddling with my sovereigns. And, speak-
 
 CONTRACT 85 
 
 ing more generally, we may say that, from our present 
 point of view, the resemblances between (1) sale or other 
 agreement by which property is transferred, and (2) an 
 agreement giving the legal right to a future transfer of 
 property or to some other service, are more important 
 than the differences. In the most important cases of 
 either and those to which our consideration may con- 
 veniently be limited in the first instance there is a 
 transfer of utility, from A to B, in view of a correspond- 
 ing transfer of utility on the other side ; and not only 
 are the general grounds of expediency for giving legal 
 force to such agreements mainly the same in both cases, 
 but the special conditions under which it is inexpedient 
 to give them such validity are also to a considerable extent 
 similar. 
 
 It will therefore, I think, save trouble to direct attention 
 first to the conditions of valid exchanges of utility which 
 are in some degree common to the two cases : and then 
 consider the conditions peculiar, from the nature of the 
 case, to agreements to which the term contract is more 
 ordinarily limited, i.e. in which the utility that one of 
 the parties agrees to transfer is a future service. 
 
 2. With regard, then, to both kinds of agreements, 
 it may be laid down as a general rule that legal validity 
 should be given to all exchanges of utility (1) made between 
 persons possessing at the time mature reason, if they have 
 been made without (2) coercion, or (3) wilful or careless 
 misrepresentation on either side ; and (4) if the effects they 
 were designed to produce involve no violation of law or 
 damage to third parties or to the community at large. 
 This rule is based on a general presumption that to carry 
 into effect agreements made under these conditions will 
 promote the interests of the parties agreeing, without 
 causing mischief to others ; this presumption being an 
 immediate deduction from the individualistic principle that 
 a sane adult can on the whole be trusted to provide for 
 his own happiness if secured from interference. But if 
 any of these conditions is not fulfilled, the presumption
 
 86 ELEMENTS OF POLITICS CHAP. 
 
 so far fails, and there is a jrrima facie ground for interfer- 
 ing to prevent or modify the agreement, or allowing it to 
 be invalidated in whole or in part ; so far as this can be 
 done without disappointing the legitimate expectations of 
 persons other than those who made the agreement. Let us 
 examine more closely the different kinds of conditions. 
 
 The first condition, that the agreeing parties should be 
 at the time in possession of mature reason, excludes or at 
 least sets aside for further consideration the agreements of 
 the three following classes of persons: (1) those who have 
 not yet come to the full use of reason ; (2) those who have 
 lost it for an indefinite period through disease ; and (3) 
 those who have transiently lost it through intoxication, or 
 some similar cause. It does not follow that all such agree- 
 ments should be incapable of being legally enforced : e.g. 
 there is a manifest expediency in the regulation that minors 
 should be legally capable of making contracts of a kind 
 clearly beneficial to them. But there is in all these cases 
 prima facie need of some limitation of the general rule of 
 enforcing agreements : since the intellectual condition of 
 one of the parties concerned precludes any general presump- 
 tion that the agreement will be for the advantage of both. 
 
 Our second condition was that exchanges of utility, to 
 be valid, should be made without coercion. Here the 
 term "coercion" requires careful definition. So far as it 
 merely means illegal coercion i.e. actual or threatened viola- 
 tion by one party of the other's legal rights the condition 
 presents no difficulty: it is manifestly inexpedient, generally 
 speaking, that the law should supply inducements to illegal 
 conduct by securing advantages to the law-breaker. 1 But 
 suppose that A induces B to enter into an agreement 
 by threatening some act or omission which is not illegal 
 or in itself immoral, but which will as a matter of fact be 
 seriously annoying to B ; while it is not conducive to A's 
 
 1 I do not know why as is commonly said to be the case in English law 
 the "duress" that renders a contract voidable is confined to "actual or 
 threatened violence or imprisonment " ; and does not include the threat of 
 irreparable injury to property. I can find no justification for this restriction. 
 The rule in the Indian Code is wider and more reasonable.
 
 CONTRACT 87 
 
 interests otherwise than by enabling him to obtain B's 
 consent to the agreement, and certainly would not have 
 taken place except for A's desire to obtain this ; is there an 
 adequate reason for invalidating such agreements, or inter- 
 fering to discourage them ? It is not easy to give a decided 
 general answer to this question : on the one hand, it is 
 obviously desirable to prevent pressure of this kind, so far 
 as this can be done without causing mischief in other ways ; 
 on the other hand, it seems difficult to prevent it in any 
 complete way, without seriously interfering with the freedom 
 of persons to declare intentions in themselves innocent. 1 
 
 It is another question whether the law should inter- 
 fere to prevent or discourage a contract in which A gains by 
 the distress of B, even though A is in no way responsible for 
 the distress nor legally bound to relieve it. Such a contract, in 
 popular political discussion, is sometimes said not to be free ; 
 but it seems clear that, on the individualistic principle, there 
 is no ground whatever for interfering to prevent it, if it be 
 granted that we have the ordinary reasons for assuming that 
 it places B in a better position than he would have been 
 apart from the contract. If A is not legally bound to help 
 B merely because he is in distress, and if he is free to con- 
 tract or not as he likes, the law cannot consistently oblige 
 him to make an exchange of utilities if he makes one 
 at all more favourable to B than he would make with- 
 out legal interference : at any rate this cannot be defended 
 on the ground that B is " not really free," in the sense 
 in which individualistic legislation aims generally at secur- 
 ing his freedom. How far any limit should be placed 
 on B's power to bind his future actions under these cir- 
 cumstances, is again a different question which we shall 
 consider later. 2 
 
 1 The "Undue influence" which renders a contract voidable, according to 
 English law, seems in some cases to include pressure of this kind, at least 
 according to the dicta of the Judges. But I am informed that these dicta go 
 beyond the decided cases ; which do not support the general proposition that 
 an agreement obtained by " pressure " is invalid, if by " pressure " is meant an 
 expressed intention of doing something lawful but injurious to the other party. 
 
 2 See 5 of this chapter.
 
 88 ELEMENTS OF POLITICS CHAP, 
 
 3. Let us now examine the third of the conditions above 
 mentioned : that there must be no wilful or negligent mis- 
 representation of material facts. We may begin by observing 
 that notwithstanding the general presumption above stated 
 experience continually shows us cases in which an exchange 
 of utility has actually been disadvantageous to one of the 
 parties, owing to an erroneous idea of the value of the thing 
 or service bargained for. The question then arises how far 
 the law should interfere to prevent or repair this dis- 
 advantage. Now it is obvious that if a seller's erroneous 
 idea of the value of a purchased commodity, even when 
 shared by the buyer, were broadly held to be a ground for 
 treating the transfer as substantially invalid, the insecurity 
 thus introduced into agreements would be so widespread as 
 to be intolerable : no purchaser (e.g.) of a picture would ever 
 know whether the exchange was really completed or not. 
 The only question that raises any doubt is, whether A should 
 not be bound to disclose all material facts known to him, 
 which are such as would affect B's judgment if he knew 
 them, supposing B to be a person of ordinary common sense. 
 I think that our first impulse would certainly be to affirm 
 that he ought : but reflection seems to show that if the 
 knowledge was of a kind that it was equally open to B to 
 acquire, it accords with our principle, that A should profit 
 by his superior knowledge, and B bear the loss arising from 
 his ignorance, provided that his mistake is not caused by 
 wilful or careless misrepresentation on A's part. And even 
 when as in ordinary cases of sale the seller may be 
 supposed to have superior knowledge of the qualities of 
 the articles sold to the buyer : still it is prima facie in 
 accordance with the principle of mutual non-interference 
 that each should be left to ascertain unaided the adaptation 
 to his own needs and desires of the thing or service that 
 he transfers or receives in exchange. 
 
 There are, however, certain kinds of exchanges, in which 
 one of the parties is from the nature of the case generally 
 placed at an obvious and marked disadvantage as compared 
 with the other, in respect of his means of acquiring know-
 
 vi CONTRACT 89 
 
 ledge upon the subject to which the agreement relates : in 
 which, therefore, there is a special utilitarian argument for 
 giving him legal security that the statements on the other 
 side are not only true as far as they go, but substantially 
 complete. Contracts for the allotment of shares in com- 
 panies afford a familiar example of this class. 1 And there 
 is a different class of cases in which concealment of material 
 facts seems to be a reasonable ground for allowing an 
 exchange to be invalidated : i.e. when the exchanging 
 parties stand in a special relationship (e.g. solicitor and client, 
 or ex-guardian and ex-ward), in which A would naturally 
 suppose B to be advising him for his (A's) own good. Still, 
 in either of these cases, the reason for invalidating the 
 agreement seems hardly consistent with the fundamental 
 individualistic assumption that government may safely leave 
 a sane adult to take care of his own interests. 
 
 Putting aside these special cases, we may say that the only 
 adequate ground for invalidating an exchange of utility freely 
 made between persons in possession of mature reason if it 
 turns out disadvantageous to one of the exchangers through 
 his ignorance of material facts is that this ignorance has 
 been caused by the other party to the exchange in some 
 active or positive manner, and not merely negatively through 
 non-disclosure. Here, however, a further limitation seems 
 necessary, to avoid a degree of interference that would do 
 more harm than good. It seems inexpedient to lay down 
 that every misleading statement made by one of the ex- 
 changers, which has in any way contributed to induce the 
 other to enter into an agreement disadvantageous to himself, 
 is to invalidate the agreement or give a legal claim to 
 reparation : to lay this down would hamper too much the 
 general freedom of conversation between human beings, 
 whenever there was a possibility that the conversation might 
 ultimately lead up to an agreement. 2 So far, then, as innocent 
 
 1 In Roman Law the principle of "caveat emptor "was overruled in 
 respect of " vitia latentia corporis," which the seller was bound to disclose. 
 
 2 Another important reason for this limitation is suggested by Sir W. 
 Anson, who says (Law of Contract, Pt. ii. ch. iv. 2) : " The process of com- 
 ing to an agreement is generally surrounded by a fringe of statement and
 
 90 ELEMENTS OF POLITICS CHAP. 
 
 misrepresentation is concerned, it seeins sufficient to provide 
 that each party to an agreement should be responsible for 
 the truth of any statement that substantially formed a part 
 of the agreement, i.e. any statement upon the truth of which 
 it was understood by both sides to be conditional. 
 
 The case is different where there has been a demon- 
 strable intention on one side to deceive the other : all kinds 
 of acts prompted by such intention, if actual mischief to 
 the person deceived follows, may reasonably be regarded as 
 violations of the utilitarian principle of non-interference, 
 and are prima facie proper subjects for legal repression. 
 And it seems right to extend the notion of " deceptive acts," 
 to include cases in which the act itself, that caused or con- 
 tributed to the erroneous belief of the other party, was not 
 designed to deceive, but in which the erroneous belief caused 
 by it was known to the agent and allowed by him to remain 
 uncorrected. 
 
 4. Finally, we laid down that the expediency of legally 
 recognising the validity even of agreements apparently ad- 
 vantageous to both the contracting parties was limited by 
 the condition that the effects which the agreement was 
 designed to produce involved (a) no violation of law, and (&) 
 no -cognisable damage to third parties or to the community 
 at large. By the first of these two conditions it is not 
 merely meant that the execution of any promise legally 
 enforced must not involve a violation of law it would, of 
 course, be absurd that an otherwise illegal act should become 
 not only legally permissible but even legally obligatory, 
 merely because the agent had expressly undertaken to per- 
 form it. The more important part of my meaning referred 
 to cases in which the promise which there is a question of 
 enforcing, is not itself illegal, but in which the prospective 
 illegal conduct of the other party to the contract constituted 
 the whole or part of the inducement to make the promise : 
 
 discussion, and the Courts might find their time occupied in endless questions 
 of fact if it were permitted to a man to repudiate his contract, or bring an 
 action for the breach of it, upon the strength of words used in conversation 
 preceding the agreement."
 
 VI CONTRACT 91 
 
 in such cases to give legal validity to the promise is obvi- 
 ously objectionable, as affording indirect encouragement to 
 the doing of illegal acts. In itself it is quite lawful for me 
 to give a ruffian a 5 note ; but if, having promised to give 
 him 5 if he would horsewhip my enemy, I were compelled 
 by law to fulfil the promise, the law would be indirectly 
 serving to increase the inducements to illegal horsewhipping. 
 
 The ground for stating separately the second limitation 
 (&) is not quite so easy to see. If, it may be said, there 
 are any acts so mischievous that promises to perform them 
 and even contracts made in consideration of promises 
 to perform them ought not to be enforced, how 
 comes it that such acts are not prohibited by law ? The 
 answer to this question will perhaps be more easily given 
 when I come to consider the different modes and degrees of 
 governmental interference for the prevention of mischief, 
 and the different drawbacks that attach respectively to these 
 different modes and degrees. I shall there point out that 
 the kind of governmental interference which consists in 
 refusing to interfere of which the refusal to recognise 
 contracts is one species is not open to some of the objec- 
 tions that may be urged against interference by direct legal 
 prohibitions and penalties actively enforced by law courts : 
 there may, therefore, be a margin of conduct harmful to the 
 community which may expediently be prevented by the 
 former milder mode of interference, though it would do 
 more harm than good to repress it by the latter more 
 intense method. 
 
 5. In the last two paragraphs we have had chiefly in 
 view contracts in the narrower and more usual sense of the 
 term i.e. agreements to perform future services. Let us 
 now consider what further limitations of the validity of 
 contract peculiar to agreements of this kind are expedient. 
 
 It is evident that if there are no such limitations, a 
 man may exercise his freedom for its own destruction by 
 contracting himself into slavery : and an individualistic 
 system that allowed this would defeat its own fundamental 
 aims. Still, the question is not free from perplexity. For
 
 92 ELEMENTS OF POLITICS CHAP. 
 
 any binding contract to be performed at a future date must 
 diminish to some extent the contractor's freedom of action 
 when the time arrives. How then, it may be asked, can a 
 line be drawn ? If A may pledge himself to work for B 
 for a year under conditions, why not for life unconditionally, 
 if he judges this to be for his own interest. How can any 
 limitation be justified except on the anti-individualistic 
 assumption that the average man cannot estimate his own 
 future interest as well as government can ? 
 
 The answer is that the individualistic principle does not 
 rest solely on the assumption of the actual superiority, 
 generally speaking, of the individual's practical judgment 
 where his own interests are concerned : it is based partly on 
 a belief in the educative value of freedom as developing 
 foresight, and not only foresight, but the moral qualities of 
 self-reliance and energy. Hence it is not on the whole 
 opposed to individualism to treat as invalid any contract 
 resigning the rights to personal liberty and security and 
 the right to acquire and dispose of property : it merely 
 implies that the general assumption that the individual can 
 be trusted to look after his own interests has at a certain 
 point to give way to the general assumption that freedom 
 is good for him. 
 
 It does not follow that there should be no enforcement 
 of agreements to render personal services for an indefinite 
 time. 1 No doubt the performance of such a compact 
 may become through change of circumstances indefinitely 
 more inconvenient to the promiser than it is advantageous 
 to the promisee. But this may easily occur in the case of 
 agreements for a definite, even for a comparatively brief, 
 date : and the difficulty may be met, consistently with our 
 principle, in a more satisfactory way without imposing a 
 limit of time. For, as has been before said, what is 
 important from the point of view of utilitarian Indi- 
 vidualism is, not so much that promises should be strictly 
 
 1 By the French law indefinite contracts of personal service are not 
 allowed. See Cod. Civil, 1780: "On ne peut engager ses services qu'a 
 temps, ou pour une entreprise determined."
 
 VI CONTRACT 93 
 
 kept, as that the recipients of promises should not suffer 
 from their breach. Hence, generally speaking, when the 
 contract relates not to the transfer of property but to 
 personal services of any kind, it will suffice to exact from 
 the promisee adequate compensation for breach of contract : 
 so that practically the legal obligation arising out of such 
 a contract will be merely the obligation to pay a sum of 
 money if it proves inconvenient to fulfil the contract. 
 
 But a further limitation is needful : since the pres- 
 sure even of pecuniary liabilities that a man cannot hope 
 to discharge may, from an economic point of view, be a 
 serious approximation to the condition of slavery : as it 
 must materially impair the stimulus which freedom gives 
 to industry, if a man's debts are so great that all he can 
 hope to gain by his labour is legally due to others. Hence 
 in all modern systems of law there is an important limita- 
 tion on obligations to pay money ; for all debts cease to 
 be legally due from what we call " discharged bank- 
 rupts " i.e. persons who have proved their inability to 
 pay and given up their property for division however 
 rich they may become after their bankruptcy. The 
 utilitarian justification of this arrangement is, that the 
 relief from debt thus given while generally necessary to 
 restore to a bankrupt the ordinary inducements to useful 
 industry involves no material sacrifice of the interests 
 of creditors ; since, even if their claims were kept legally 
 valid, they would still have no effective means of com- 
 pelling the defaulting debtor to earn the funds required 
 to satisfy them. The general force of this reasoning is 
 undeniable ; though on the other hand there seems to be 
 no reason why the relief given to the bankrupt should be 
 so complete as to remove all inducement to repair the mis- 
 chief he has caused to others ; it seems therefore expedient 
 that a bankrupt who has not paid his debts should remain 
 in a position of marked social inferiority. 1 
 
 1 I think (e.g.) that he should be deprived of all political franchise ; and 
 that hia legal immunity should depend on his name being kept in a register 
 open to public inspection.
 
 94 ELEMENTS OF POLITICS CHAP. 
 
 But, agaiu, before the time has arrived to render the 
 service agreed upon, it may have become impossible or 
 illegal to render it. On whom should the loss through 
 this non-performance fall ? Let us first take the case of 
 physical impossibility. Generally speaking, it would seem 
 that the person who undertakes to perform a service ought 
 to ascertain before undertaking it whether it is in his power 
 to perform it, just as the recipient ought to ascertain 
 whether it is worth while to pay the price asked : using 
 economic terms we may say that the promiser's business 
 is to know the conditions of supply, while the promisee's 
 business is to know the conditions of demand. So that, 
 if the subsequently manifest impossibility is one that might 
 have been foreseen, the promiser should be held responsible 
 for damage through non-performance. In many cases, how- 
 ever, it is either implied in the language used, or may be 
 assumed from the nature of the case, that it was the 
 intention of both parties that the promiser should be only 
 bound to perform if performance be possible. For instance, 
 if a contract is made to render artistic services requiring 
 special physical qualifications such as singing for a 
 certain payment ; just as it may be assumed on the side 
 of the purchaser of the service that what he intends to 
 bind himself to remunerate is not merely the performance 
 of certain actions, but the production of certain aesthetic 
 effects by means of them ; so, it may be assumed on the other 
 side, that it is not intended that the artist should be con- 
 sidered to have failed to perform the contract, if, at the time 
 fixed, he is physically disqualified from producing the desired 
 effects. Perhaps a similar limitation of intention may be 
 assumed where the performance of a contract becomes 
 illegal through change in the law. At any rate, it seems 
 clear that the promiser cannot reasonably be expected to 
 foresee such changes : it is burden enough in a modern 
 civilised community to be legally assumed to know the law 
 as it is : it would be intolerable if one also had to foresee 
 what is going to be a year hence. If, however, A has 
 paid money to B or performed a service, with a view to
 
 vi CONTRACT 95 
 
 B's performance of a future service which, iii the meantime, 
 has become illegal through a change in the law, the money 
 should be returned or the past service remunerated. 
 
 6. So far I have examined the conditions under which 
 legal validity should be given to agreements in which both 
 parties receive some utility. It will be evident that the 
 limitations expedient in this case should also be applied 
 so far as they are applicable to one-sided transfers of 
 utility : but it may be questioned whether the legal en- 
 forcement of agreements of this latter kind should not be 
 still further limited ; since there is obviously not the same 
 prima facie ground for considering the agreement advan- 
 tageous to both parties. Still it would clearly interfere 
 with freedom of action if A were not allowed to transfer 
 property to B, merely because there was no commodity or 
 " valuable consideration " received by him in return ; and it 
 does not at first sight appear why he should not be com- 
 pelled to render a service to which he has voluntarily bound 
 himself under similar circumstances. There is, however, in 
 our law, a provision that there must, generally speaking, be 
 valuable consideration to make a promise enforceable, unless 
 it is made with special formalities ; and this provision 
 seems to be approved by the most esteemed living writers 
 on this branch of law. Apparently it is thought that 
 persons should be able to bind themselves by gratuitous 
 promises, but that some special solemnity should be re- 
 quired (1) as a protection of the inconsiderate, and (2) as 
 evidence of the fact that the promise was really made 
 " preappointed " evidence. The former argument is 
 obviously an introduction of the " paternal " principle ; but 
 there seems to me to be force in the latter, from our present 
 point of view, owing to the greater difficulty, in the case 
 of such one-sided promises, of distinguishing a statement of 
 a benevolent intention, not intended as a pledge, from a pro- 
 mise really understood as such on both sides. Still, on the 
 individualistic principle, it seems clear that any adequate 
 evidence of a one-sided promise ought to be accepted, and 
 that it ought to be as valid as a contract in which an
 
 96 ELEMENTS OF POLITICS CHAP. 
 
 exchange is made, that is, if we are merely considering the 
 claim arising out of such a promise as a single and separate 
 claim. It is another question whether we should enforce a 
 two-sided promise rather than a one-sided one, if we have 
 to choose between the two ; e.g. as against an insolvent 
 estate, whether a gratuitous promise should be allowed to 
 rank along with promises given for value. Here, I think, 
 we should certainly decide in the negative on utilitarian 
 grounds : it is much more important that men should rely 
 on bargains than that they should rely on one-sided promises 
 not to speak of the need of providing that persons prac- 
 tically insolvent should not be able to create " friendly " 
 creditors : on similar grounds it is necessary to invalidate 
 even gifts of property made by persons who cannot pay 
 their debts. 
 
 7. I proceed to notice a special operation of contract 
 which is important as determining a modification of owner- 
 ship. When we were examining the general desirability 
 of securing to individuals the right of exclusive use of 
 material things, the question might have been raised : 
 Why appropriate to individuals ? Productive labour, under 
 modern industrial conditions, is usually the labour of many 
 co-operating. Why not allow appropriation to a group of 
 persons ? And the answer clearly is that we ought to allow 
 this, provided the group is so organised as to be capable of 
 corporate action, or at least that the property rights of 
 members of the group are definitely determined so as to 
 avoid conflict in management and enjoyment. But our 
 principle obviously requires that the organisation of such a 
 group should be determined by free contract among its 
 members, on the ground that men in general can deter- 
 mine on what terms they can combine better than govern- 
 ment can determine for them. Again, if such collective 
 ownership is to be as useful as possible it must be allowed 
 to carry with it the capacity of being the subject of rights 
 arising out of contract ; and, obviously, the corporate body 
 or " artificial person " who possesses these rights must 
 equally be the subject of contractual obligations, and obliga-
 
 vi CONTRACT 97 
 
 tions attaching to property. But a little reflection will 
 show that obligations can only be to a limited extent trans- 
 ferred to such an artificial person by the real persons com- 
 posing it. It is evident that such persons cannot be allowed 
 to diminish their general responsibility for the observance of 
 the rights of others ; it would be absurd that by any com- 
 pact among themselves they should be able to contract 
 themselves out of prior legal obligations to other men ; there- 
 fore, if any act is done in the name of an artificial person, 
 by which such obligations are violated, all the persons con- 
 cerned in doing or ordering the act must be held responsible 
 as individuals. 
 
 The case is different with obligations arising out of con- 
 tract : it is clearly in accordance with the individualistic 
 principle that a group of persons should be allowed to con- 
 tract on the basis of "limited liability," provided this is 
 clearly understood by the other party to the contract, since 
 the latter can always decline to enter into the contract if the 
 security seems insufficient. In short, on the individualistic 
 principle, the only legitimate end with which legal restraints 
 can be imposed on the formation of corporations capable of 
 holding property and making contracts is that of securing 
 clear intimation of their formation to the rest of the com- 
 munity, and clear distinction between their acts and the 
 acts of the individuals composing them. Some part of our 
 actual regulation of joint-stock companies is clearly designed 
 to realise this end, and is therefore simply individualistic ; 
 though other rules can only be interpreted as intended to 
 protect the ordinary members of the company against the 
 mischievous consequences of leaving too much to their 
 directors. 1 
 
 1 Such rules belong to the species of governmental interference, which I 
 shall discuss in Chap. VIII., as "indirectly individualistic" or "paternal."
 
 CHAPTEK VII 
 
 INHERITANCE 
 
 1. THE right of Bequest, and the title to property arising out 
 of it, conies naturally to be considered after the rights arising 
 out of contract. Indeed, a bequest made and accepted under 
 conditions may be regarded as a kind of contract between 
 the dead and the living. It follows that bequests should 
 only be treated as valid under limitations generally similar 
 to those which we have minutely examined in the case of 
 contract ; i.e. they must be liable to be invalidated, in whole 
 or in part, by the absence of mature reason, or the presence 
 of coercion or deception. It has to be observed, however, 
 that where bequest operates some fresh legal intervention 
 would be necessary even if there had been no bequest ; 
 since it would be manifestly opposed to the interest of the 
 community that the wealth left by a dead man should be 
 liable like things thrown away during life to become 
 the property of the survivor who seized it first. There 
 must therefore be in any case a Law of Intestate Inherit- 
 ance : and it might seem simpler to consider first the plan 
 on which such a law should be constructed, before proceeding 
 to discuss the conditions under which bequest should be 
 allowed. 1 But, on the whole, it seems to me better to adopt 
 the opposite order ; since, when wills are allowed, any rules 
 deviating widely from normal customs of bequest would be 
 likely to cause painful disappointment of expectation : hence 
 
 1 This is (e.g.) the order in which Bentham (Civil Code, Part ii. chapters iii. 
 and iv.) deals with the two questions of " Wills " and "Intestate Succession." 
 
 98
 
 CHAP, vn INHERITANCE 99 
 
 the regulation of intestate succession will reasonably be 
 determined to some extent on different grounds, according 
 to the nature of the restrictions placed on the right of 
 bequest. 
 
 To many Englishmen at the present day the right not 
 only of distributing one's wealth after death, but of order- 
 ing the details of its use for all time, seems to be naturally 
 and almost necessarily included in the Right of Property, 
 that is, unless the wealth has been given or bequeathed 
 to the owner under special limiting conditions. In fact, 
 however, the right of free bequest is of comparatively late 
 growth in the development of society. As Maine has pointed 
 out, 1 " in all indigenous societies a condition of jurisprudence, 
 in which testamentary privileges are not contemplated," 
 precedes that in which free testation is permitted ; and 
 even in mediaeval law we find that liberty of bequest 
 was at first closely limited by the rights of the testator's 
 widow and children. The power of diverting the whole 
 of a man's property from the family, or of distributing 
 it quite capriciously, is not older than the later portion 
 of the Middle Ages. " When modern jurisprudence first 
 shows itself in the rough," 2 wills are rarely allowed to 
 interfere with the right of the widow to a definite share, 
 and of the children to certain fixed proportions, of the 
 common inheritance. And similar restrictions are actually 
 maintained in the French Civil Code and several other legal 
 systems ; partly owing to the remarkable persistence of the 
 older view of family right when so much of less ancient 
 origin was swept away in the revolutionary era but partly, 
 no doubt, from the desire to prevent the inequalities result- 
 ing from primogeniture. 
 
 I have allowed myself this brief historical digression, 
 because it is almost required to explain the peculiar position 
 which this point in the individualistic scheme occupies at 
 the present day. 
 
 Freedom of Bequest, on the one hand, has not completely 
 emancipated itself from the old traditional restraints in the 
 
 1 Ancient Law, p. 177. - 1. c. p. 224.
 
 ioo ELEMENTS OF POLITICS CHAP. 
 
 interest of the family ; and, on the other hand, it is assailed 
 by new limitations, proposed in the interest of the com- 
 munity. Now we have before seen that Bequest occupies 
 a somewhat different position from other rights included in 
 our common conception of the Eight of Property, when the 
 question of allowing it is treated on purely individualistic 
 principles : since the consideration of it seems prima facie 
 to lead us to an " antinomy " a pair of irresistible argu- 
 ments on opposite sides of the question. 1 From a utilitarian 
 point of view, indeed, the encouragement that the right of 
 bequest gives to industry and thrift seemed to be a decisive 
 consideration in favour of allowing it. This consideration, 
 however, though decisive in favour of some freedom of 
 bequest, does not clearly negative the imposition of greater 
 restrictions on bequests than we think it expedient to impose 
 on a man's power of transferring property during his life. 
 An individualist, therefore, may admit such restrictions, 
 in the interest either of the testator's family or of the 
 community, without a palpable abandonment of his funda- 
 mental principle. 
 
 2. Let us then consider first restrictions in the interest 
 of the family, as being the older : and, for the sake of de- 
 finiteness, let us suppose such a plan of restriction as that 
 adopted in the French code. Suppose that a man's pro- 
 perty, if he has three or fewer children, is ideally divided 
 into equal shares exceeding by one the number of his 
 children, only one of which he is free to bequeath away 
 from them : while, if he has more than three children, he is 
 free to bequeath away from them one-fourth of his property, 
 but no more ; as regards the rest, he cannot deprive any 
 child of its equal share, except for special causes judicially 
 proved. 
 
 The objection to such a measure seems to be that, 
 granting it to be desirable that a man's property in a general 
 way should go to his children, the testator evidently 
 has special means of ascertaining his children's wants and 
 deserts ; so that any variations from equality of distribution 
 
 1 See p. 53.
 
 INHERITANCE 101 
 
 which he may be induced to make, if free bequest is allowed, 
 are likely on the whole to correspond to variations either in 
 their wants or their deserts. On the other side it is urged 
 that the disinheriting of children is liable to give a painful 
 and undeserved shock to reasonable expectations : and no 
 doubt cruel disappointments may thus be caused. But 
 similar mischief may be done in other cases by the tacit 
 encouragement, without any definite and provable promise, 
 of expectations of gift, bequest, or other aid : and in such 
 cases it is generally recognised that the repression of wrong 
 must be left to morality, since law can only protect expecta- 
 tions arising out of definite and demonstrable engagements. 
 And if it be thought that in the present case some special 
 legal interference is needed, owing to the strong support 
 that common opinion gives to the expectations of children 
 to inherit their parents' wealth, it would be easy to prevent 
 the shock of disappointment by requiring a parent who 
 wished to retain his freedom of bequest to notify this to his 
 children before they attained a certain age. The real issue 
 therefore is not whether the disappointment of expectations 
 of inheritance should be prevented, but whether the law 
 should intervene to create such expectations. I know no 
 adequate justification for such interference, so far as it 
 provides that a number of human beings, after being 
 properly educated, shall not have to depend on their own 
 exertions for subsistence: but it is expedient to secure to 
 all children support and proper training until they can 
 provide for themselves, and it appears to me to be in 
 harmony with the individualistic principle to limit the 
 power of bequest so far as is necessary to secure this result. 
 3. So far I have considered the bequest simply as 
 having the effect of dividing the property among children 
 or other persons who receive it in complete ownership. 
 Suppose, however, that a child or grandchild is an infant 
 at the parents' death ; it is obvious that the property must 
 be given to some one to hold in trust for it. We thus 
 introduce the notion of fiduciary as distinct from beneficiary 
 ownership ; in which the management of property is separ-
 
 102 ELEMENTS OF POLITICS CHAP. 
 
 ated from the enjoyment of it. The necessity for such 
 trusts in the case of young children is manifest ; but when 
 we consider the expediency of allowing fiduciary ownership 
 to be extended beyond what is required for this purpose 
 as (.#.) by permitting parents to pass over children and 
 bequeath property to be held in trust for descendants yet 
 unborn the conclusion, from our present point of view, is 
 more doubtful. On the one hand besides the general 
 argument for freedom of bequest there would in some 
 cases be a difficulty in arranging the succession to property 
 in accordance with the testator's view of the needs and 
 deserts of his descendants, unless such remote trusts were 
 allowed. On the other hand, fiduciary ownership involves 
 the drawback that a trustee cannot be expected to be as 
 much interested in the management of property as an 
 ordinary owner would be : while, if he is controlled by con- 
 ditions imposed by the testator, there is the further objection 
 that the testator's foresight of the future is limited, so that 
 after his death an arrangement manifestly undesirable may 
 be legally unalterable. This latter objection applies with 
 especial force to property left to public objects : if the 
 testator's design is carried out it may become worse than 
 useless, owing to change of circumstances, even when it was 
 originally well conceived. 
 
 Similar questions arise as to the expediency of allowing 
 ownership that is not fiduciary, but limited in time or 
 restricted by conditions, to be created by bequests, or by 
 any legal act that continues to take effect after the death 
 of the person imposing the limitations or conditions. E.g. 
 when a man thus becomes an owner of land for life only, he 
 is likely not to have sufficient inducement to apply capital 
 in improving the land ; and the inalienability necessarily 
 involved in such life-ownership may keep the land in the 
 hands of a person who has neither skill nor capital to deal 
 with it in the best way. 
 
 These and similar difficulties are only particular cases of 
 the general theoretical difficulty that besets the individual- 
 istic system even when interpreted in a completely utili-
 
 INHERITANCE 103 
 
 tarian sense if it is taken to include freedom of bequest. 
 Granting that men in general will extract most satisfaction 
 out of their wealth for themselves, if they are allowed to 
 choose freely the manner of spending it, it obviously does 
 not follow that they will render it most productive of 
 utility for those who are to come after them if they are 
 allowed to bequeath it under any conditions that they 
 choose. On the contrary, it rather follows from the funda- 
 mental assumption of individualism, that any such post- 
 humous restraint on the use of bequeathed wealth will tend 
 to make it less useful to the living, as it will interfere with 
 their freedom in dealing with it. Individualism, in short, 
 is in a dilemma. The free play of self-interest can only be 
 supposed to lead to a generally advantageous employment 
 of wealth in old age, if we assume that the old are keenly 
 interested in the utilities that their wealth may furnish to 
 those who succeed them : but if they have this keen in- 
 terest they will probably wish to regulate the future em- 
 ployment of their wealth ; while, again, in proportion as 
 they attempt this regulation by testament, they will 
 diminish the freedom of their successors in dealing with 
 the wealth that they bequeath ; and therefore, according to 
 the fundamental assumption of individualism, will tend to 
 diminish the utility of this wealth to those successors. Of 
 this difficulty there is, I think, no general theoretical solu- 
 tion : it can only be reduced by some practical compromise. 
 Thus the creation of fiduciary ownership for the benefit of 
 young children may be limited by requiring the children to 
 be living when the bequest takes effect, or born within a 
 certain period after that date. Again, the general dis- 
 advantages of fiduciary management, and of management by 
 a limited owner which have been specially noted in the 
 case of land may be minimised by securing to the trustee 
 or life-owner an inalienable right of selling the land or 
 other property, provided he invests the proceeds of the sale 
 in securities of a certain class. 1 Finally, in the case of 
 
 1 The disadvantage of fiduciary ownership is obviously not great, if the 
 function of the trustee is confined to that of receiving the income of " safe "
 
 104 ELEMENTS OF POLITICS CHAP. 
 
 trusts for public uses usually of a permanent kind it 
 is desirable that the government should have a general 
 power and duty of invalidating useless or mischievous be- 
 quests ; and of revising and modifying the employment of 
 the funds bequeathed, after a certain interval of time or 
 after any important change of circumstances. 
 
 4. The restrictions on free bequest, which the discussion 
 in the preceding section has led me to propose, are such as 
 English legislation has long recognised as expedient. But 
 limitations of a much more sweeping kind have often been 
 recommended by thinkers who would have shrunk from 
 interference with any other of the rights commonly included 
 in our conception of the right of property ; and, in par- 
 ticular, by the influential utilitarian writers on whose work 
 the present treatise is chiefly based. In 1793-5, Bentham 
 proposed in connection with an " extension of the law of 
 escheat," of which I will presently speak that, in case of 
 failure of near relations, the power of bequest should only 
 extend to half the testator's property. 1 Half a century later 
 J. S. Mill 2 stated that were he " framing a code of laws 
 according to what seems best in itself," he would " prefer to 
 restrict not what any one might bequeath, but what any 
 one should be permitted to acquire, by bequest or inherit- 
 ance. Each person should have power to dispose by will 
 of his or her whole property ; but not to lavish it in en- 
 riching some one individual " even a near relation 
 " beyond a certain maximum, which should be fixed 
 sufficiently high to afford the means of comfortable inde- 
 pendence." It appears to me, however, that any interfer- 
 ence with free bequest, so serious as that contemplated in 
 
 investments that do not practically require looking after, and investing any 
 annual surplus in similar securities. If, indeed, a very large portion of the 
 capital of the country were in this condition, the industrial progress of society 
 might be hampered by the difficulty of finding capital for new undertakings : 
 but this danger is hardly within the range of practical politics. 
 
 1 It ought to be said that in the TraiMs de Legislation, published by 
 Dumont in 1802, from Bentham'a MSS., this restriction is only suggested 
 in a doubtful and hesitating manner. See Principes de Code Civile, Part ii. 
 ch. iv. 
 
 2 Political Economy, Book ii. ch. ii. 4.
 
 vii INHERITANCE 105 
 
 either of these proposals, would dangerously diminish the 
 motives to industry, and what is here, perhaps, more 
 important thrift, in the latter part of the lives of the 
 persons who came under the restrictions. Moreover, any 
 interference running strongly counter to the natural inclina- 
 tions of such persons would be likely to be extensively 
 evaded by donation before death. 1 Probably all that can 
 be safely attempted in the way of limiting bequests in the 
 interest of the community beyond the regulations pro- 
 posed in the preceding paragraph is a tax on inheritance, 
 considerably increased when bequests are received by others 
 than near relations. 
 
 5. I now pass to consider how intestate succession is 
 to be regulated. I have before pointed out that the question 
 of intestate succession will tend to be determined in different 
 ways, according to differences in the legal rules and normal 
 habits of bequest ; since, where wills are allowed, rules of 
 intestate succession deviating widely from the ordinary 
 habits and customs of bequest would be likely to cause 
 painful disappointment. Hence, assuming freedom of bequest, 
 we have two distinct principles for determining the law of 
 intestate succession ; we may either keep as close as possible 
 to the general customs of bequest, or may be guided by con- 
 siderations of general expediency. But general expediency 
 can, I conceive, lead to no selection of heirs outside the circle 
 of those for whom the deceased was either morally bound 
 or naturally disposed to provide. The question, therefore, 
 can only be between distribution within a defined circle and 
 appropriation by the community. 
 
 By the nature of the case this question cannot receive 
 a perfectly definite answer, except in relation to the actual 
 state of opinion and custom in a particular age and country. 
 But we may say generally that any gain thus obtainable 
 by the community would be purchased at too great a cost 
 
 1 This is admitted by Mill, who consequently thought that "the laws of 
 inheritance have probably several phases of improvement to go through before 
 ideas so far removed from present modes of thinking will be taken into serious 
 consideration." Political Economy, Book v. ch. ix. 1.
 
 106 ELEMENTS OF POLITICS CHAP. 
 
 if it involved bitter disappointment to individuals, of a kind 
 calculated to excite universal sympathy ; as would be the 
 case if a man's children or grandchildren lost their inherit- 
 ance through his accidental intestacy. I do not, however, 
 think that this result would follow in England from the 
 adoption of Bentham's scheme for distributing intestate 
 inheritance. 1 The chief points in this are : 
 
 (1) That half the common property shall go to a widow 
 
 after her husband's death, 2 and the rest be divided 
 among his descendants, if any ; and that, on the 
 decease of a widow, her property shall be similarly 
 divided among her descendants. 
 
 (2) That there shall be equal division " by stocks " and 
 
 not by heads ; i.e. that if a child dies before his 
 father, leaving children, his share shall be divided 
 among his children in equal proportions ; and so 
 of all descendants. 
 
 (3) That if a person has no descendants, his property 
 
 shall go to his parents ; or, if either parent is 
 dead, to his or her descendants. 
 
 (4) That, in default of near relations as defined by (3) 
 
 it shall escheat to the State. 
 
 Here the exclusion of primogeniture and of the rights 
 of cousins and grandparents, involved in recommendations 
 (2) and (4), are to be noted as markedly opposed to exist- 
 ing English law. On both these points J. S. Mill is in 
 substantial agreement with Bentham ; only he would press 
 the principle of (4) still further, holding that " no rights 
 should be acknowledged in collaterals, and that the property 
 of those who have neither ascendants nor descendants should 
 escheat to the State." 3 It seems to me that, on account of 
 
 1 See Principles of the Civil Code, Part ii. ch. Hi. 
 
 2 Bentliam assumes that while the enjoyment of the property of married 
 pairs should be in common, the legal ownership of such property should be 
 vested in the husband. 
 
 * If all prejudices could be put aside, Mill would like to reduce the share 
 of descendants, in the case of intestacy, to a "just and reasonable provision ;
 
 vii INHERITANCE 107 
 
 the relations of affection that normally attach any person 
 to the other descendants of his parents, Mill's proposed rule 
 would, in cases of accidental intestacy, cause painful dis- 
 appointment to natural expectations. But I think that the 
 actual expectations of remoter relatives are mainly created 
 by the law ; and that, if the law were altered, they would 
 not exist, under ordinary circumstances, to any extent 
 worth considering. I think, therefore, that the exclusion 
 of collaterals in case of intestacy in the milder degree 
 proposed by Bentham would furnish a legitimate source 
 of revenue to the community, it being understood that any 
 hardship that might arise from it in special cases, in which 
 the declared and unrevoked intention of a deceased person 
 had been prevented from realisation by sudden death, might 
 be recognised and remedied by the grant of a share of the 
 inheritance. 
 
 As regards the principle of distribution within the 
 intestate's family circle, it would seem that Bentham's 
 proposal of equal division, by stocks and not by heads, is 
 more in harmony with ordinary domestic sentiment, and 
 the expectations arising out of ordinary customs of bequest, 
 and also more in accordance with the individualistic prin- 
 ciple l than any other rule which could be conveniently 
 laid down. 
 
 Equal division of an intestate's property might no doubt 
 cause some disagreeable shock to expectation in England, in 
 the case of large landed estates which are customarily settled 
 on the eldest living descendant of the eldest line. On the 
 other hand, similar disappointment causing probably more 
 distress is now liable to be given to small owners of land 
 and houses, who have never intended inequality of division ; 
 and this latter class of persons would appear to need the 
 
 that is, such a provision as the parent or ancestor ought to have made ; their 
 circumstances, capacities, and mode of bringing up being considered." But 
 he recognises that this suggestion is not within the range of practical politics. 
 See Political Economy, Book v. ch. ix. 1. 
 
 1 Equal division by heads obviously tends less than equal division by 
 stocks to maintain the individual's responsibility of providing for the 
 children he brings into the world.
 
 108 ELEMENTS OF POLITICS CHAP, vit 
 
 care of the legislator more than the former, as the richer 
 landowners may be more safely presumed to know the 
 actual state of the law at any time, and therefore to guard 
 against the effects of intestacy, if they dislike them. 1 It 
 would seem, therefore, that the balance of argument is 
 against maintaining primogeniture by law, if we consider 
 merely natural expectations, and leave general expediency 
 out of account ; and it does not appear that the general 
 expediency of primogeniture has ever been supported, or 
 could be supported, by arguments that individualists could 
 approve. It is chiefly defended on the ground that large 
 landowners are more likely than small ones to manage 
 their relations with tenants and labourers on other than 
 strictly economic principles ; but, from an individualistic 
 point of view, this can hardly be regarded as a result at 
 which the law ought to aim. 2 
 
 1 I suppose that the persons who have land to leave by will, and who wish 
 to "make an eldest son," are an insignificantly small minority ; since eldest 
 sons are usually made by settlement inter vivos. 
 
 In this part of my treatise I am primarily concerned with the individual- 
 istic system. But as I shall not have occasion to refer to the present topic 
 again I may add that (apart from expectations arising oiit of custom) I do 
 not know any arguments worthy of serious consideration, from a socialistic 
 point of view, in favour of the right of primogeniture.
 
 CHAPTEK VIII 
 
 REMEDIES FOR WRONGS 
 
 1. WE have now surveyed in outline the rights which, on 
 the individualistic principle, should be secured by law to 
 private members of the community, so far as they corre- 
 spond to obligations imposed upon other private individuals. 
 The main positive obligations, as we have seen, are (1) the 
 duty to perform such engagements as have been deliberately 
 made without constraint or culpable misrepresentation ; and 
 (2) the duty of parents to support and train children. The 
 other obligations are chiefly negative to abstain from per- 
 sonal constraint and from acts causing physical injury or 
 serious discomfort to others ; from interference with the 
 exclusive use of certain portions of matter, and certain 
 results of intellectual labour ; and from certain sources of 
 mental annoyance, especially defamation, and deception that 
 results in mischief; also from interference with the rights 
 involved in the institution of the family. 
 
 We have now to consider how the fulfilment of these 
 obligations is to be secured, and how the mischiefs arising 
 out of their non-fulfilment are to be remedied. We must 
 bear in mind that, on the individualistic principle, strictly 
 interpreted, Government is not concerned with the pre- 
 vention or reparation of mischief, except so far as it is due, 
 directly or indirectly, to the action of other men. It may 
 be that, at a particular time and place, the forces of external 
 nature irruptions of floods or wild beasts, or flights of 
 destructive insects are more formidable sources of mischief 
 than the malice or carelessness of men, and that complex 
 
 109
 
 1 10 ELEMENTS OF POLITICS CHAP. 
 
 and carefully arranged co-operation is required to guard 
 against the evils which they tend to produce. But, accord- 
 ing to the individualistic principle, it may be doubted 
 whether this co-operation should be compulsory ; whether 
 any one should be compelled to join in protecting others 
 from harm which he has not himself in some way positively 
 contributed to cause, either by his own acts or by voluntary 
 acceptance of the responsibilities resulting from other men's 
 acts, as for instance, by becoming owner of dangerous 
 instruments, animate or inanimate. I shall hereafter 1 
 argue that where the need of such organised co-operation 
 is clear and urgent, the application of the individualistic 
 principle may legitimately be extended to include its en- 
 forcement ; but, at present, it seems best to confine our 
 attention to governmental interference designed to prevent 
 or remedy mischief manifestly caused by human action. 
 
 In considering this interference, we are met with a 
 distinction commonly taken as fundamental between the two 
 main functions into which the administration of law is 
 divided, according to popular conception and received legal 
 theory, viz. (1) the enforcement of damages due to the 
 wronged individual ; and (2) the infliction of punishment 
 in the name of the community. According to my view, this 
 distinction though very important is not so fundamental 
 as it is commonly conceived to be : because I hold that both 
 in determining when damages are due, and when punish- 
 ments should be inflicted, for past mischief, the prevention of 
 future mischief ought generally to be a paramount considera- 
 tion. In order to justify this view, it will be well to begin 
 by considering the meaning and extent of the distinction, 
 as commonly conceived ; and the different kinds of wrongs, 
 or the different characteristics of wrongs, to which damages 
 and punishment are respectively thought to be appropriate. 
 
 The popular view may be briefly expressed by saying 
 that punishments are retributive 2 and damages merely 
 
 1 See p. 133. 
 
 2 I do not mean that the popular conception of punishment does not also 
 include the prevention of crime by terror : but the notion of retribution is 
 most prominent.
 
 REMEDIES FOR WRONGS 
 
 reparative. Punishments are thought to be the proper 
 requital for acts that are not only harmful to others but 
 immoral and blameworthy ; whereas, in the case of such 
 violations of rights as are not held morally blameworthy, 
 because they are either unintentional or may fairly be 
 supposed to have been committed by persons who believed 
 they had justice on their side, all that is thought to be 
 generally necessary is that the injury shall be repaired or 
 compensated ; that the person injured shall be restored to 
 the condition in which he stood before the injurious action, 
 or placed in a condition equivalent in respect of advantages. 
 This distinction between retribution and reparation is, I 
 think, clearly found in the common moral consciousness of 
 the most advanced modern societies. 
 
 It should, indeed, be noted that at an earlier stage 
 of social and intellectual development this distinction is 
 obscure, or but faintly perceptible ; the penal loss of an 
 " eye for an eye," or of a " tooth for a tooth," was commonly 
 regarded as a kind of reparation to the person originally 
 maimed. 1 And even at the present day in England, some 
 writers, influenced by Bentham, speak of the "vindictive 
 satisfaction " that punishment gives to the individual 
 injured, as an important element of its utility. Thus 
 Sir J. Fitzjames Stephen says that " the benefits which 
 criminal law produces are twofold. In the first place, it 
 prevents crime by terror ; in the second place, it regulates, 
 sanctions, and provides a legitimate satisfaction for the 
 passion of revenge ; the criminal law stands to the passion 
 of revenge in much the same relation as marriage to the 
 sexual appetite." - I think, however, that this statement 
 goes further in legitimating the passion of revenge than the 
 common moral sense of the present age and country can 
 follow. I admit that this impulse gives valuable aid to 
 
 1 It may be noticed as an interesting point in the history of moral 
 thought and feeling that in Aristotle's conception of " corrective justice" 
 (Ethics, Book v.), the notions of retribution and reparation appear to be 
 completely blended. 
 
 2 General View of the Criminal Law, chap. iv.
 
 112 ELEMENTS OF POLITICS CHAP. 
 
 the effective administration of criminal justice among human 
 beings as actually constituted; and that if we could suppress 
 the passion of revenge without effecting any other change in 
 the moral nature of average men, we should do more harm 
 than good. Nor, again, do I deny that the moral or quasi- 
 moral demand for retribution on a wrongdoer, as felt not 
 by the person primarily wronged but by other members of 
 the community in which the wrong has been done, is a 
 sentiment that may be traced back to the desire of personal 
 revenge as one, at least, of the roots out of which it 
 springs. 1 But I hold that the two impulses have now 
 become completely distinct ; though we now commonly 
 think that morality requires that a crime should be 
 punished, we yet think that the satisfaction which the 
 person injured derives from this punishment has a certain 
 taint of immorality. If it is asking too much of human 
 nature to prescribe a rigid exclusion of such malevolent 
 pleasure, at any rate we think that it ought not to be 
 cherished and dwelt upon, and made a conscious object of 
 pursuit. 
 
 We may take it, then, that Ketribution on the wrongdoer, 
 as demanded by the common sentiment of justice in civilised 
 mankind, here and now, is altogether distinct from the 
 Eeparation which the same sense of justice also recognises 
 as due to the person wronged. But when the two notions 
 are separated, it must be plain that the popular view which 
 regards such retribution as an end in itself, independently 
 of its useful consequences in preventing future mischief, is 
 strictly incompatible with the fundamental principle of 
 Utilitarianism, assumed throughout the present discussion. 
 From a utilitarian point of view, the pain caused by punish- 
 
 1 J. S. Mill says (Utilitarianism, chap, v.) : "The sentiment of justice 
 appears to me to be the animal desire to repel or retaliate a hurt or damage 
 to one's self, or to those with whom one sympathises, widened so as to 
 include all persons, by the human capacity of enlarged sympathy and the 
 human conception of intelligent self-interest. From the latter elements 
 the feeling derives its morality." Provided that this is taken as an account 
 of the antecedents rather than the deineiits of the sentiment in question, I 
 am disposed to agree with it.
 
 vin REMEDIES FOR WRONGS 113 
 
 merit to the person punished is of course to be regarded as 
 an evil, only admissible in order to prevent worse evil. 
 
 No doubt the impulse to inflict harm, in the name of 
 justice, on persons who have intentionally done mischief, is 
 a practically useful element of the general moral disappro- 
 bation caused by such acts, and a most powerful auxiliary 
 to the legal punishment by which government seeks to 
 repress crimes. As Sir J. Stephen forcibly says : " Some 
 men, probably, abstain from murder because they fear that 
 if they committed murder they would be hung. Hundreds 
 of thousands abstain from it because they regard it with 
 horror. One great reason why they regard it with horror 
 is, that murderers are hung with the hearty approbation of 
 all reasonable men. Men are so constituted that the energy 
 of their moral sentiments is greatly increased by the fact 
 that they are embodied in a concrete form. ... It is this 
 secondary effect of criminal law which makes it important 
 that law and morals should harmonise as far as possible, so 
 that the one shall gratify the sentiments which the other 
 excites." But while this harmony between the moral and 
 the legal repression of wrongs is a most important advan- 
 tage, which the legislature should always keep in view, it is 
 none the less necessary to recognise that it cannot be com- 
 pletely attained. Mischievous acts, requiring severe repres- 
 sion on the part of government, are continually done, not 
 merely from amiable motives but with excellent intentions. 
 The sincerest religion, the most ardent patriotism, have 
 occasionally prompted men to homicide of the most danger- 
 ous kind ; and probably not a few well-intentioned persons 
 have at various times thought with Godwin, 1 that "if I 
 have had particular opportunity to observe any man's vices 
 . . . there may be very sufficient grounds for my repre- 
 senting him as a vicious man " in order to " warn those 
 whom his errors might injure," even though " I may be 
 wholly unable to demonstrate his vices " ; and have thus 
 from mere virtuous indignation and philanthropy incurred 
 the legal punishment of libel. In such cases, though there 
 
 1 Political Justice, Book vi. chap. vi. 
 
 I
 
 1 14 ELEMENTS OF POLITICS CHAP. 
 
 may be a general sense that punishment is necessary, it is 
 not demanded as a proper retribution on the ill-desert of 
 the agent. Hence we cannot define the species of wrongs 
 which ought to be repressed by punishment as wrongs 
 inflicted with an immoral intention ; since, though this 
 characteristic is present in the great majority of acts that 
 ought to be punished, it is clearly not present in alL 
 
 I conclude, then, that from a political point of view, 
 it is evidently necessary to take as the primary end of 
 punishment the prevention of mischief and not the retribu- 
 tion of wickedness : and to decide on this principle any 
 doubtful questions as to the allotment of punishments. 
 
 2. Let us now turn to consider cases where, in the 
 common view, what is judicially enforced is compensation 
 to the individual wronged, and not punishment on the 
 wrongdoer. Here, too, we shall find that, though repara- 
 tion is undoubtedly a part of the aim of law, the prevention 
 of future mischief is also an important consideration : 
 and, generally speaking, the most decisive consideration in 
 determining doubtful points. 
 
 Let us first observe that blameworthiness, in some degree, 
 is normally characteristic of mischief for which reparation 
 ought to be legally enforced as well as of that for which 
 punishment is inflicted as punishment. This is not, per- 
 haps, clear at first sight ; it may be thought that the need 
 of reparation arises from the mere fact that mischief, such 
 as law aims at preventing, has been inflicted by A on B, 
 without any consideration of the blameworthiness of A : 
 that if A has caused, even quite accidentally, mischief or 
 loss which must ultimately fall on somebody, it is more 
 reasonable that the burden of the loss should be borne by 
 A, who did, in a physical sense, act, than by B, who is 
 innocent of any action whatever. But reflection will, I 
 think, show that, from a utilitarian point of view, it would 
 be wrong to hold men responsible for all results to which 
 they physically contributed, however impossible it may 
 have been to foresee such results. It is fundamentally 
 important for the general happiness of any society that its
 
 vjn REMEDIES FOR WRONGS 115 
 
 members should be acting strenuously and energetically in 
 some way or other : and it would too seriously interfere 
 with this to lay down the broad rule " that every man acts 
 at his peril," and is responsible for any mischief that may 
 result. I hold, therefore, that damages for unintentional 
 mischief should only be legally enforced, as a general rule, 
 when the man who has physically caused the mischief has 
 not taken due and proper care : i.e. has not taken such care 
 as would be taken by an ordinary person desirous of avoid- 
 ing injury to others, as completely as this can be done 
 without serious interference with his normal functions, 
 unless his normal industry is of a dangerous kind, 
 in which case special care may reasonably be required. 
 The line, of course, is a difficult one to draw exactly : 
 it must to a great extent be left to be decided by 
 common sense and experience applied to particular cir- 
 cumstances. As will be seen from the language that I 
 have just used, I by no means assume that in every case 
 where a man is rightly held legally responsible for the 
 consequences of his act, there must have been something 
 morally blameworthy in the state of mind that preceded the 
 act in question. As Mr. Holmes says : " The law considers 
 what would be blameworthy in the average man, the man of 
 ordinary intelligence and prudence, and determines liability 
 by that : if a man is born hasty and awkward . . . his 
 neighbours require him at his proper peril to come up to 
 their standard." l But it remains true that, so far as 
 responsibility be thus determined, the object of the law 
 in enforcing damages is not merely reparative, but partly 
 also preventive ; it aims at maintaining a certain average 
 standard of carefulness by providing that those who fall 
 short of this standard shall act at their peril 
 
 In laying down as a general principle that reparation 
 should only be due where there has been at least negligence, 
 if not culpable intention, I do not mean to affirm that there 
 may not be important exceptions. We cannot even say 
 that every act known by the agent to be mischievous, and 
 
 1 Holmes on the Common Law, chap. ii.
 
 u6 ELEMENTS OF POLITICS CHAP. 
 
 for which reparation should be exacted, is an act from 
 which the agent ought to have abstained ; since in excep- 
 tional circumstances it may sometimes be right to choose 
 such an act as the lesser of two evils. Again, where 
 protection from a particular kind of mischief is of great 
 importance, and where it is specially difficult to prove mis- 
 chievous intention or neglect of others' rights on the part 
 of persons who contribute in a secondary way to the mis- 
 chief, it may be on the whole best to make the burden 
 fall on these contributories, though innocent not only 
 of harmful intention, but even of negligence. This is 
 perhaps the case where damage has been innocently done 
 to the property of another by a man who had good reason 
 for regarding it as his own. Suppose (e.g.) that a man 
 has innocently purchased stolen goods, under circumstances 
 which gave no occasion whatever for suspicion. It seems 
 hard that he should have to compensate for any damage 
 done to the goods : but considering the great importance of 
 protecting property, the great difficulty of tracing it when 
 stolen, the ease with which trade in stolen goods may be 
 carried on undetected, it is perhaps needful, for adequate 
 repression of this trade, and adequate determent to possible 
 purchasers of other men's goods, to adopt the broad principle 
 that no seller can give a better title than he has got : so that 
 not only restoration of such goods, but also reparation for 
 any damage done to them, will be due to the rightful owner 
 from the most innocent and diligent purchaser. And other 
 exceptions may have to be admitted on similar grounds. 1 
 Still, I conceive it will remain generally true that the 
 
 1 It seems to me that the view of " employer's liability " taken in English 
 Law is only defensible by reasoning similar to that suggested in the text. 
 By English Law a " master" is liable for torts committed by his " servant " 
 if these torts are committed while the servant is "about his master's 
 business" : the master cannot free himself from the liability by any proof 
 that he has selected the servant with care, and enjoined on him care and 
 circumspection in the matter in question. This, I think, is only to be 
 justified on the supposition that a really satisfactory proof of adequate care 
 on the master's part is too difficult to enforce, so that the only way of 
 securing adequate care is to make the master liable in any case. Whether 
 this is so or not, I do not feel able to judge.
 
 vill REMEDIES FOR WRONGS 117 
 
 enforcement of damages no less than the infliction of 
 punishment (in the narrower sense) should be regarded as 
 implying, in the broad sense above explained, some degree 
 of culpability in the person on whom reparation is imposed. 
 How then shall we distinguish the kind of wrongs for 
 which the enforcement of damages is the appropriate penalty, 
 from the kind of wrongs for which punishment proper is 
 required ? An answer often given to this question is 
 that damages are the appropriate remedy for private wrongs, 
 or encroachments on the rights of individuals considered 
 as such ; whereas punishment is required to repress public 
 wrongs, or offences against the community. This answer, 
 no doubt, corresponds to the historical origin of the distinc- 
 tion, 1 but it is unsuitable to a fully-developed system of 
 jurisprudence so far as it maintains a distinction in kind 
 between the mischief of crimes and the mischief of civil 
 injuries : we cannot really get beyond a distinction in degree. 
 The graver mischiefs that we chiefly speak of as criminal are 
 primarily inflicted on individuals, no less than the slighter 
 injuries which only give a claim for damages :' and what 
 Bentham calls the " secondary evil " of alarm and danger, 
 which unpunished crime tends to cause to the community 
 at large, exists to some extent in the case of almost all 
 violations of rights, indeed it is less obvious and palpable 
 in the case of many crimes than it is in the case of the un- 
 intended mischiefs which a modern system of law would 
 treat merely as civil injuries. If A has wounded my 
 neighbour to-day by firing a pistol carelessly in his garden, 
 he is not unlikely to wound me before long in the same 
 way if he is not made to suffer for his carelessness : but if 
 
 1 In an interesting chapter (x.) of Ancient Law, Maine explains the lateness 
 of the development of a true criminal jurisprudence in Rome in the sense 
 in which "criminal" implies the distinction of crimes from civil injuries 
 as due to "the very distinctness" with which the conception of a crime as 
 a "wrong done to the State" was realised. He points out that the penal 
 law which we find in early Roman jurisprudence "is not the law of crimes ; 
 it is the Law of Torts. The person injured proceeds against the wrongdoer 
 by an ordinary civil action, and recovers compensation in the shape of 
 money-damages if he succeeds." The same characteristic appears even more 
 strongly in other primitive systems of law.
 
 1 18 ELEMENTS OF POLITICS CHAP. 
 
 he has wounded him in a duel, my alarm is at any rate 
 more indirect and remote, since he cannot fight a duel with 
 me without my consent. 1 
 
 On the whole, then, it seems to me that the distinction 
 between wrongs that give occasion for damages only, and 
 wrongs that give occasion for punishment proper, is a subor- 
 dinate one, which experience alone can enable us to draw in 
 the best way, in establishing an actual system of legal sanc- 
 tions. All governmental interference caused by proved 
 violation of rights ought to aim, so far as possible, at re- 
 pairing the past mischief as w r ell as preventing future 
 mischief of the same kind. In some cases the enforcement 
 of adequate compensation not only for the original wrong, 
 but also for any trouble and expense entailed in the process 
 of obtaining redress for it is sufficiently onerous to the 
 person who has violated another's right to render unneces- 
 sary any further, purely penal, intervention of government ; 
 and so far as this is the case, it is advantageous in all ways 
 to avoid inflicting punishment as such for offences that 
 cannot excite the clear and decided moral disapprobation 
 which is commonly reserved for intentional misdeeds. In 
 the case, however, of mortal injuries, where reparation is 
 impossible to the person primarily injured, and prevention 
 specially important owing to the gravity of the mischief, 
 there seem to be overwhelming reasons for treating even 
 mere negligence as criminal. And, on the other hand, there 
 are minor injuries which, even though intentional, may be 
 adequately repressed by the enforcement of damages ; as 
 (e.g.} malicious slander is held to be in English law. 
 
 I think, therefore, that in a theoretical discussion of 
 remedies for wrongs, Damages should be treated as one 
 form of legal penalty, having, generally speaking, a pre- 
 ventive as well as a reparative function. It should be 
 assumed (1) that the law will secure adequate reparation 
 to the person wronged, so far as this is possible ; and (2) 
 
 1 No donbt each case of duel makes it harder for others to abstain ; there- 
 fore an unpunished duel does tend to cause some alarm to members of the 
 community generally.
 
 vin REMEDIES FOR WRONGS 119 
 
 that certain classes of wrongs which experience alone can 
 enable us to define may be adequately repressed by the 
 mere enforcement of damages : while in other cases, either 
 from the gravity of the offence, or because, though socially 
 dangerous, it causes no definite harm to assignable in- 
 dividuals, 1 or because nothing like adequate reparation is 
 likely to be obtained, 2 punishment proper is the indispen- 
 sable means of determent. 
 
 At the same time, I do not wish to underrate the 
 practical importance of the distinction between punishments 
 and damages as appropriate respectively to crimes and civil 
 injuries. A clear distinction between the procedures belong- 
 ing to the two kinds of remedies respectively is a necessary 
 element of a civilised system of law. For where it is an 
 adequate means of preventing wrongs to fix the burden of 
 reparation on the wrongdoer, there is obviously no absolute 
 necessity for any intervention of government : the required 
 reparation may as well be made privately between the 
 parties, so that it may properly be left to the option of the 
 individual wronged to invoke the aid of government if 
 necessary. On the other hand, where punishment as dis- 
 tinct from reparation is needed in the interest of the 
 community at large, it must be the business of government 
 to secure that it shall be inflicted whenever it is deserved : 
 to secure, therefore, that persons harmed by the crime shall 
 come forward and give evidence, and shall not make peace 
 with the criminal. And to attain this result, it is found 
 more and more necessary, as civilisation advances, that 
 government should make the prosecution of crimes its own 
 business. Thus, though the ultimate end of both civil and 
 criminal procedure is to a great extent the same prevention 
 
 1 It should be borne in mind that offences may be committed deserving 
 severe punishment without any question of redress arising. Foiled attempts 
 to commit grave crimes are examples of this class of offences : e.g. forgery 
 detected before it takes effect. 
 
 2 This is liable to occur in the case of wrongs committed by the poor : it 
 may be necessary to inflict punishment for them, because the poverty of the 
 wrongdoer would render it unprofitable to bring an action against him for 
 damages.
 
 120 ELEMENTS OF POLITICS CHAP. 
 
 of mischief the regulations of the two systems are neces- 
 sarily different ; and historically they have shown a marked 
 tendency to diverge more and more. 
 
 On this subject I shall have something more to say in 
 the part of my treatise that deals with the structure of 
 government. 1 At present I shall confine myself to a brief 
 discussion of the kinds and amounts of reparation that law- 
 courts should enforce, and the kinds and degrees of punish- 
 ment that they should inflict. 
 
 3. First, as regards reparation. In the case of 
 injuries affecting property, restitution in kind, where 
 possible, and the payment of an equivalent in money for 
 the utilities of which the proprietor has been wholly or 
 partially deprived, are the most obvious modes of com- 
 pensation, and capable in most cases of being made 
 adequate : nor does there seem to be any other available 
 mode of making reparation for physical injuries to the 
 person, though the adequacy of a money payment is in 
 this case much more doubtful. Where, however, it is the 
 right to reputation that has been violated, the mischief 
 done can be to a certain extent though in many cases not 
 completely repaired by a public contradiction of the 
 defamatory statement that caused it : and where such a 
 contradiction is voluntarily made by the defamer the Courts 
 should recognise it as at least a part of the compensation that 
 it is their business to enforce. But such a contradiction 
 could not be made compulsory, and its refusal criminal, 
 without danger of forcing the defamer to say what he did 
 not believe to be true : nor is there any necessity for such 
 compulsion, since, if the defamer refuses to retract his 
 defamatory statement, the end in view can be sufficiently 
 attained by the publication of the Judge's decision that the 
 statement was false. 
 
 The most difficult case is that of injuries to reputation, 
 which result not from false statements, but from insults 
 which, according to the common sentiment of civilised 
 Europe or of the gentry in European countries it is 
 
 1 See Chap. XXIV. 6.
 
 REMEDIES FOR WRONGS 
 
 discreditable to receive, or at least to endure peacefully. So 
 long as this sentiment a survival from more disorderly 
 times continues strong, it is probably impossible to find 
 any mode of completely repairing the injury done to reputa- 
 tion by such insults ; but perhaps the closest attainable 
 approximation to reparation is to be got by inflicting a 
 humiliating punishment. This suggestion is worked out in 
 detail by Bentham ; and though several of the humiliations 
 that he proposes are too grotesque to be adopted, the need 
 that they are designed to meet is still a real one ; and in 
 many cases it would, I think, be possible to find expedients 
 for meeting it, which should not be grotesque or otherwise 
 undignified. 1 
 
 For the injury done to a woman's husband, father, or 
 other relatives by her seduction, I know of no appropriate 
 reparation ; and, so far as it is desirable that this mischief 
 should be legally repressed, I think it is a case for punish- 
 ment rather than damages. 
 
 Where the injury for which reparation is due has not 
 been provoked or in any degree caused by culpable acts or 
 omissions on the part of the person injured, the proper 
 amount of pecuniary compensation is, in the abstract, not 
 difficult to determine : it should be an equivalent not merely 
 for the original injury, but for the sacrifices entailed by the 
 process of obtaining reparation. When, on the other hand, 
 the person injured is partly to blame, it is obviously reason- 
 able that the compensation should be diminished by an 
 amount proportioned to his share in causing the injury : 
 though it may often be impossible to determine the diminu- 
 tion otherwise than very roughly. 
 
 I may observe that the adequacy of reparation is 
 important not only to the individual wronged, but also to 
 others : since, if reparation can be made adequate, the 
 
 1 See Beiitham's Principles of Penal Law, chap. xv. (Works, vol. i. p. 381). 
 Among other too grotesque suggestions, I may notice that of "emblem- 
 atical robes," or "masks," with "a magpie's or a parrot's head in cases of 
 temerity " ! On the other hand I see no reason why certain outrageous 
 insults should not entail "speech of humiliation prescribed to the offender," 
 or even, if this did not suffice, a humiliating posture.
 
 122 ELEMENTS OF POLITICS CHAP. 
 
 expectation of obtaining it very much reduces the alarm 
 caused by the offence. Hence the special importance of 
 preventing by effective punishment irreparable wrongs. 
 
 4. Let us now pass from the consideration of Damages 
 to that of Punishment in the narrower sense. In selecting 
 the kind of punishment, the first point to notice is, that 
 though punishment mainly prevents wrong by deterring 
 and this is its sole preventive operation so far as it acts on 
 others than the person punished still, so far as the criminal 
 is concerned, there are two other modes of prevention of 
 which we must not lose sight : viz. Reformation and Dis- 
 ablement. It is therefore desirable, so far as possible, that 
 the kind of punishment should be selected with a view to 
 these important though subordinate ends. 
 
 Reformation is especially to be aimed at in the case of 
 juvenile offenders, disablement in the case of offences com- 
 mitted by influential persons in transient crises of civil 
 strife. For both these ends imprisonment is the obvious 
 means ; for the former, imprisonment with labour, care 
 being taken not to render the labour needlessly repulsive, 
 and to allow industry to obtain its natural reward. 
 
 It is a difficult matter to determine satisfactorily the 
 right degree of punishment for any given offence. It is 
 easy to say, with Bentham, that it ought to be sufficient to 
 deter, and not more than sufficient. But our general 
 knowledge of the variations in human circumstances and 
 impulses would suggest what experience amply confirms 
 that no punishment whatever can be relied on to be 
 adequately deterrent in all cases. Murder and man- 
 slaughter, burglary and larceny, have continued to harass 
 society through all changes in the allotment of punish- 
 ment ; and no change is likely to put an end to them. 
 Now, impulsive crimes we cannot hope to prevent by 
 any intensification of punishment until human nature is 
 fundamentally altered : but crimes planned in cold blood 
 are matters of calculation, and it does not seem impossible 
 that it should be made unmistakably a man's interest, on a 
 cool calculation of chances, not to commit a crime. Since,
 
 vni REMEDIES FOR WRONGS 123 
 
 however, the attainment of this result depends not only on 
 the amount of punishment, but also on the chances that 
 the criminal (1) will be caught, and (2) will be condemned 
 if caught, it may easily happen that in a community where 
 the police is ill organised, and the judges liable to be 
 corrupt or inefficient, the required adjustment of interests 
 cannot be effected : the uncertain chance of the maximum 
 punishment which humanity admits may not be enough 
 to outweigh the prospective profit of the crime. For the 
 same reason, in societies where similar governmental defects 
 exist in a less degree, an increase in the efficiency of police 
 and judicature will often enable intensity of punishment 
 to be reduced without increasing crime. 
 
 The difficulty of adjusting amount of punishment to 
 gravity of offence, in a manner adapted to meet all variations 
 in human nature and its circumstances, affords a strong 
 argument for increasing heavily the severity of punishment 
 at each repetition of any kind of deliberate crime : l since 
 the fact that a man, after suffering the punishment of an 
 offence committed in cold blood, proceeds to commit another 
 offence of the same kind, is tolerably conclusive evidence 
 that in his particular case the punishment already inflicted 
 was not sufficiently deterrent. 
 
 There are several other considerations that ought to be 
 taken into account, in the selection and graduation of 
 punishments : of these the following appear to be the most 
 important : 
 
 1. To realise the principle of justice that similar cases 
 should be treated similarly, it is important that punishment 
 should be equable ; i.e. that a punishment of a certain deno- 
 mination say imprisonment should not mean different 
 things in different cases. This is an argument (e.g.} for 
 central rather than local management of prisons : for watch- 
 fulness as to effects on health, etc. 
 
 It is to be observed, however, that this principle is 
 almost impossible to realise in dealing with offenders drawn 
 
 1 The force of this consideration may be neutralised in particular cases 
 by special extenuating circumstances.
 
 124 ELEMENTS OF POLITICS CHAP. 
 
 from different classes in the community. "We cannot, even 
 by proportioning the sum imposed to the offender's income, 
 so far as we can ascertain it, prevent punishment by fine 
 from being practically less severe to the rich than to the 
 poor ; and it is still more clear that we cannot prevent 
 imprisonment with labour from being more severe to the 
 former. This being so, it seems, on the whole, best where 
 some inequality cannot be avoided that the rich should 
 suffer somewhat more than the poor ; as crime may be pre- 
 sumed to be generally more culpable in persons more highly 
 educated, and shielded by their wealth from the severe 
 temptations incident to poverty. 
 
 2. Avoidance of excess in punishment is important, not 
 only in order to inflict no more pain than is needed which, 
 of course, is to be aimed at from a utilitarian point of view 
 
 but even more in order that different degrees of punish- 
 ment may all be adequately deterrent, where the criminal 
 has choice of alternatives of crimes, differing in degree of 
 mischievousness. It is of fundamental importance that a 
 man should always have adequate motive to refrain from 
 committing each successive part of any possible complex 
 offence ; or a greater offence, instead of a lesser. Punish- 
 ment, therefore, should be so chosen that clearly greater 
 punishments may be allotted to more mischievous crimes. 
 
 This is one argument for attaching capital punishment 
 to murder alone : so that (e.g.) the thief or burglar may 
 have an adequate inducement not to commit murder even 
 when it would give him an additional chance of getting off. 
 
 3. From a utilitarian point of view, it is plain that, 
 supposing the preventive effect of punishment undiminished, 
 the less pain it actually gives to a criminal the better. 
 Hence, it is an advantage that punishment should be, so far 
 as possible, what Bentham calls " exemplary," i.e. greater in 
 appearance than in reality, since it is chiefly appearance that 
 deters. And, of course, punishments of the opposite kind, 
 really worse than they seem, should be carefully avoided. 
 
 But in seeking to make punishments " exemplary," care 
 should be taken to prevent them from being offensive to
 
 vin REMEDIES FOR WRONGS 125 
 
 popular feeling, and so likely to arouse aversion to the 
 administration of the law, and dangerous sympathy with 
 the criminal punished. Moreover, the infliction of even 
 transient pain beyond a certain degree of severity * would 
 be opposed to a sentiment of humanity, which it is not 
 merely politically dangerous to offend, but important to the 
 wellbeing of society to maintain and develop. 
 
 4. Punishment should, other things being equal, be as 
 little burdensome as possible to the community : e.g. if useful 
 labour is adequately deterrent its utility is so much gain : 
 and, similarly, if the penalty suffered by the wrongdoer is 
 at the same time compensatory to persons wronged. Indeed, 
 as we have seen, so far as compensation can be adequate, 
 the enforcement of it may be sufficiently preventive of the 
 offence. 
 
 5. Finally, taking mistakes into account, it is well that 
 punishment should be remissible if possible. This is, of 
 course, an objection to capital punishment though not, in 
 my opinion, a decisive one ; also to the infliction of lesser 
 bodily injuries of an irreparable kind, such as maiming. 
 
 1 This is an " exemplary " punishment, because the effect on the imagina- 
 tion is increased by the concentration of the pain.
 
 CHAPTEE IX 
 
 PREVENTION OF MISCHIEF AND PATERNAL INTERFERENCE 
 
 1. IN the last chapter I was concerned with the distinction 
 between Punishments and Damages, and the distinction 
 which is usually conceived to correspond to this between 
 public offences and private or civil injuries. According 
 to me, neither distinction in a well-organised system of 
 remedies for wrongs would though important have quite 
 the fundamental importance which it has in English law. 
 For, from a utilitarian point of view, all punishment is 
 preventive in its ultimate end, and not retributive ; though 
 it is desirable that, so far as possible, intentional acts that call 
 for punishment should be regarded with moral disapprobation 
 and aversion. And again, the infliction of damages must be 
 mainly determined by considerations of prevention and not of 
 reparation alone ; since, generally speaking, damages should 
 not be enforced for mischief done by A to B, unless the mis- 
 chief could have been avoided by care which an average man 
 can be made to take without excessive anxiety or distraction 
 from his ordinary avocations. 
 
 It seems to me better to say (1) that reparation as well 
 as prevention should be the general aim of governmental 
 interference in the judicial way ; and (2) that in some cases 
 the mere enforcement of reparation may be adequate for 
 purposes of prevention. 
 
 I pointed out, further, that prevention was not only 
 though mainly attained by the deterrent effect of punish- 
 ment. This is its sole preventive effect on others : but as 
 
 126
 
 CHAP, ix PREVENTION OF MISCHIEF 127 
 
 regards the individual punished, prevention may also be 
 attained by reformation and by disablement. 
 
 I then went on to consider briefly some of the leading 
 characteristics of well-chosen punishments. 
 
 Punishments should be so chosen that a given denomina- 
 tion of punishment shall, as far as possible, not mean very 
 different actual degrees of severity in different cases. It 
 should, if possible, be severe enough for the chance of it to 
 outweigh clearly, on a cool calculation, the advantage of the 
 crime : capable of gradation, so that a criminal may always 
 have adequate inducement to prefer the lesser offence to the 
 greater : not severer in reality than in appearance, since it 
 is appearance that deters : as little burdensome as possible 
 to all but the criminal, and so far as may be remissible. 
 
 In order to complete the theory of remedies for wrongs, 
 we have now to consider other modes of preventing and 
 to a less extent of repairing mischief caused to men by 
 their fellows. We must first take note of one indirect 
 method of preventing wrongs which is only an extension of 
 the method discussed in the previous chapter : I mean that 
 of deterring, by infliction of punishments or enforcement of 
 damages, not only the actual violators of any rights but 
 those who incite others to violate them. The general 
 expediency of this is manifest ; though it is sometimes a 
 matter of much delicacy to determine, in particular cases, 
 what expression of opinion or sentiment may reasonably be 
 held to constitute an incitement to law-breaking. So again, 
 it is clearly in accordance with our principle, that govern- 
 ment should intervene with physical force to protect private 
 rights, in particular cases where the deterrent effect of 
 punishment is evidently inadequate for their protection 
 i.e. where a manifest wrong is actually being committed, 
 or where the intention of committing it is plainly shown. 
 Wherever manifestly illegal annoyance is being caused or 
 threatened to any person by the action or inaction of 
 others, it seems undoubtedly the business of government 
 to intervene to remove or prevent it, except so far as 
 the machinery required for such intervention would entail
 
 128 ELEMENTS OF POLITICS CHAP. 
 
 expense more burdensome to the community than the annoy- 
 ance that would be prevented. 
 
 This proviso, however, leads us to observe that the 
 primitive method of self-defence and self-reparation must be 
 allowed some place in the most completely civilised com- 
 munity. The establishment of civilised order tends to 
 reduce this within narrow limits : but as the eye of 
 government cannot be all-seeing nor its hand everywhere 
 active, any private individual should be allowed to defend 
 with force himself and any neighbour who is forcibly 
 attacked in person or property ; under the condition that 
 the mischief inflicted on the aggressor is not clearly out of 
 proportion to the aggression e.g. I must not shoot a man for 
 trespassing on my land. Similarly private persons should be 
 allowed to abate any public nuisance that needs an immediate 
 remedy e.g. cut down a fence across a public road. But 
 though, when a wrong is threatened or begun, the immediate 
 use of force is often necessary to prevent or terminate it, 
 there is not the same need for promptitude in punishment : 
 hence any violence that is not needed for the repulsion of 
 wrong, and therefore merely serves to gratify the resent- 
 ment of the person assailed, should be prohibited as illegal, 
 owing to the great public importance of preventing private 
 fighting. But forcible reparation as distinct from retalia- 
 tion should be allowed to a limited extent on the same 
 grounds as self-defence: thus, the forcible recapture of 
 property, that has been taken away without pretence of 
 legal right, should be allowed where delay in recapture is 
 likely to entail further injury. 
 
 Further, we have seen that one end of punishment is 
 to disable the criminal from further crime for example, by 
 imprisonment. A similar restraint of personal liberty is 
 obviously expedient in the case of persons who are merely 
 suspected of crime, if the grounds of suspicion be adequate : 1 
 since otherwise a criminal aware that he was suspected 
 might always evade punishment by absconding before the 
 
 1 I shall notice in a later chapter the need of limiting this power by con- 
 stitutional securities.
 
 IX PREVENTION OF MISCHIEF 129 
 
 legal proof of his crime was complete. So, again, the 
 mischief that might be done, to others as well as to them- 
 selves, by persons bereft of reason, ought to be prevented 
 by placing them under special watch and restraint, so soon 
 as their irrationality is evident. 
 
 Again, in the case of mischief against which the persons 
 liable to injury can, and probably will, protect themselves 
 if duly warned, it will hardly be doubted that government 
 may sometimes usefully intervene in the way of warning or 
 diffusing information, as when the police inform the public 
 that there is a special danger of pickpockets. Such in- 
 formation may be indirectly as well as directly given : 
 thus, by instituting a certificate obtainable by professional 
 men physicians or teachers whom it deems properly 
 qualified, government indirectly warns the public against 
 impostors who may attempt to practise these callings with- 
 out the requisite qualifications. No one, again, will doubt 
 that where mere warning is not likely to be sufficient, 
 government may properly intervene to prevent certain 
 kinds of mischievous acts or neglects, by keeping some 
 watch on the processes in connection with which they are 
 liable to be committed, so far as these processes are carried 
 on in public ; as (e.g.} by visiting shops and markets where 
 there is reasonable ground for suspecting the deception of 
 purchasers by sellers. 
 
 2. A consideration of the last-mentioned case leads 
 naturally to a further important step ; which, as we shall 
 see, brings us up to the disputed margin of what I have 
 called the " individualistic minimum " of governmental 
 interference. For the prevention of deception by sellers, 
 in respect of the quantity of the wares purchased, is 
 obviously much facilitated by the prescription of standard 
 weights and measures : and similarly in many other cases 
 the easiest and most effective way of preventing harm is to 
 prescribe certain precautions against it i.e. to prohibit acts 
 or omissions not directly or necessarily mischievous to 
 others, but attended with a certain risk of mischief. Here, 
 however, we have come to an extension of governmental 
 
 K
 
 130 ELEMENTS OF POLITICS CHAP. 
 
 interference, in the way of regulation involving a similar 
 extension in the way of inspection 1 the legitimacy of 
 which has been in some cases seriously disputed by in- 
 dividualists. Its aim, however, does not go beyond the 
 protection of individuals from mischief caused by other 
 individuals : and certain ancient kinds of it of which the 
 prescription of standard measures is a familiar example 
 have never, so far as I know, met with any practical opposi- 
 tion : while, in modern times, a continually increasing 
 amount of it is now judged necessary by our own and other 
 civilised Governments. I may give as instances restrictions 
 on the manufacture and carriage of explosive substances 
 and rules against importing cattle from countries where 
 disease is rife. 2 It is not certain that any given cargo of 
 suspected cattle or carelessly carried explosives would do 
 any harm : but most prudent persons see that the risk is 
 too great to run. 
 
 Now this kind of indirectly individualistic interference 
 can hardly be argued to be generally inadmissible, on 
 our utilitarian interpretation of the fundamental prin- 
 ciple of Individualism. Sometimes, indeed, the burden 
 thus imposed on private persons is so slight in comparison 
 with the evils guarded against, that no one would hesitate 
 to impose it, if experience shows it to be at all efficacious 
 for the attainment of the end in view. This is the case (e.g.} 
 when Government, besides diffusing information and warn- 
 ing, imposes on others the duty of furnishing it, either to 
 remove or reduce the risk of mischief through violence, neg- 
 ligence, or fraud as when it orders that poisons when sold 
 should be designated as such, and that the name and address 
 of persons to whom they are sold should be preserved ; or to 
 facilitate the attainment of redress in case of wrong as 
 when it requires printers' and publishers' names to be 
 affixed to publications. Another instance of the same kind 
 
 1 So far as such regulations are applied to processes carried on otherwise 
 than in public, it will be necessary, in order to secure their observance, 
 that Government inspectors have the power of entering private grounds 
 and buildings. 
 
 2 I give these as clearly not what I go on to call "paternal."
 
 ix PREVENTION OF MISCHIEF 131 
 
 is the compulsory registration of mortgages and bills of 
 sale, regarded as a precaution against fraud. 
 
 Where the restraints or burdens imposed by such inter- 
 ference are more serious, the annoyance and cost entailed 
 by it, on the community or on individuals, must of course 
 be carefully weighed against the evils which experience 
 shows it to be capable of preventing : and under the head 
 of cost must be included any economic loss caused by the 
 enforced substitution of a more expensive for a cheaper 
 process of attaining any industrial end. But I do not 
 think that any general rules can be laid down for deter- 
 mining the limits of such interference : all we can say is 
 that a milder degree of interference, if effective, is generally 
 to be preferred. 
 
 The possible gradations in intensity of interference will 
 of course vary according to circumstances ; but I may give 
 one or two illustrations of them. 1 I may begin by referring 
 to the much-discussed case of restrictions on freedom of 
 speech or writing, so far as such restrictions are designed 
 to protect the rights of private persons. 2 There are obvious 
 and great advantages to be gained by leaving men as much 
 liberty as possible to argue that certain established rights, 
 or certain modes of exercising these rights, are injurious 
 to the community and ought to be suppressed : since it is 
 through judicious criticism of this kind that improvements 
 in legislation and administration of law are chiefly to be 
 expected, while in other cases where a change in legal 
 rights is inexpedient such criticism may be useful in 
 rousing public sentiment to supplement the inevitable 
 deficiencies of law : and if judicious criticism is to be 
 allowed and even encouraged, injudicious criticism must be 
 tolerated to some extent, even though it has a certain 
 tendency to cause violations of law. Hence, even when 
 this dangerous tendency is so marked as to render some 
 repression of free criticism less mischievous than complete 
 
 1 Other kinds of gradation will be noticed later. See pp. 137, 138. 
 
 2 Restrictions on freedom of discussion, imposed in the special interest of 
 government, will be considered in a later chapter (XXVII.).
 
 132 ELEMENTS OF POLITICS CHAP. 
 
 toleration, it is generally expedient to confine this repression 
 to the more inflammatory modes of publishing opinions 
 hostile to established rights : for instance, to allow such 
 opinions to be freely published in books, when they could 
 not be tolerated in speeches or placards. 1 Again, certain 
 practices dangerous to others such as the drinking of 
 alcohol to the point of intoxication may be tolerated 
 in private but repressed if the drunkard appears in 
 public. Or, again, restrictions may be imposed not on 
 the persons who do the acts liable to be followed by 
 mischievous consequences, but on the traders who, for 
 private gain, supply facilities for such acts, as when the 
 publican is forbidden to sell alcohol to a person who 
 is clearly intoxicated, or is known by him to be a 
 habitual drunkard. This last kind of interference is, 
 indeed, no less intense than that for which it is a substi- 
 tute ; but, owing to its limited range, it is on the whole 
 less vexatious. 
 
 3. Here, however, it has to be observed that in dealing 
 with these and similar concrete examples of what I have 
 characterised as " indirectly individualistic interference," we 
 see that it is very difficult to distinguish it in practice 
 from the kind that I have called " paternal." Abstractly 
 considered, the question (1) " How far Government may 
 legitimately go in preventing acts or omissions that are not 
 directly or necessarily harmful, on the ground that there 
 is risk of their causing mischief indirectly to persons, other 
 than the agent, who have not consented to run the risk," 
 is quite distinct from the question (2) " How far Government 
 ought to interfere to prevent mischief caused to an individual 
 by himself or with his own consent." But in concrete cases 
 the two questions are almost always mixed up, since, where 
 a man's acts or neglects tend to harm himself so seriously as 
 to suggest a need of Governmental interference to prevent 
 
 1 " Au opinion that corn-dealers are starvers of the poor, or that private 
 property is robbery . . . may justly incur punishment when delivered orally 
 to an excited mob assembled before the house of a corn-dealer, or when 
 handed about among the same mob in the form of a placard." J. S. Mill, 
 On Liberty, chap. UL
 
 ix PRE VENTION OF MISCHIEF 133 
 
 the mischief, they usually tend also to harm others. 1 An 
 illustration of this may be found in the sanitary regulations 
 enforced by our own legislation. When a man is forced 
 to co-operate with his fellow-citizens in a common system 
 of drainage and water-supply, when he is prevented from 
 using a house unfit for human habitation, or from over- 
 crowding any part of a house, it may be said that coercion 
 is applied to him in his own interest : and no doubt it is 
 designed that he should derive benefit from the coercion ; 
 still its main justification lies in the need of protecting his 
 children and neighbours who might suffer if his house 
 became a focus of disease. Similarly, few individualists are 
 so extreme as to deny that the tendency of drunkenness 
 to cause breaches of the peace is a legitimate ground for 
 some interference with the trade of selling alcohol : and 
 the most thoroughgoing abolitionist usually urges restriction 
 more as indirectly individualistic than as paternal i.e. more 
 on the ground of the proved tendency of alcoholic excess to 
 make a man beat his wife and starve his children, than on 
 the ground of its tendency to injure the drunkard himself. 
 So again, where an individual would evidently cause 
 danger to the physical wellbeing or the property of others 
 by not taking precautions to protect his own person or 
 property from certain external sources of mischief, as in 
 the case of protection of land from floods, or of men or use- 
 ful animals from infectious diseases, it is, I conceive, a 
 simple application of the individualistic principle to make 
 him responsible, after warning, for the injury that his 
 neglect may cause to others : and if so, when this injury is 
 likely to be, in kind or amount, such as he could not ade- 
 quately compensate, it is an obvious and not unreasonable 
 extension of the principle to compel him to co-operate with 
 others in a general system of precautions. And though 
 the benefit of such compulsion may be primarily received 
 
 1 I do not here take into account the tendency of a man who harms himself 
 to harm others by bad example. For interference to protect men from the 
 mischief of bad example is clearly "paternal": since if we assume them 
 adequately capable of looking after their own interests, we must assume 
 that bad example will be on the whole deterrent rather than attractive.
 
 134 ELEMENTS OF POLITICS CHAP. 
 
 by himself, still since the decisive ground for adopting it is 
 the prevention of mischief to others, it is not properly to 
 be regarded as " paternal " interference, in the special 
 sense in which I have adopted this term. Similar reasoning 
 is applicable to the provision of means for reducing mischief 
 caused by accident or neglect, when such mischief is liable 
 to spread : as in the case of fires in towns. 1 
 
 Other interferences that may seem prima facie 
 " paternal " in their aims admit of being regarded, at least 
 in part, as merely an extension of that protection against 
 deception which the individualistic principle has always 
 been held to cover. For instance, when our Government 
 endeavours to prevent its subjects from employing im- 
 properly qualified physicians, apothecaries, and pilots ; or 
 from buying meat known to be diseased ; or from taking 
 part in dangerous industrial processes as (e.g.) mining and 
 navigation without due precautions, it may be said that 
 it aims merely at protecting its subjects from evils in- 
 curred through ignorance of which other persons take 
 advantage. And a similar view may also be taken of 
 another important class of cases in which the mischief 
 sought to be prevented is pecuniary loss. Thus, it may be 
 said that the prohibition of " truck " (that is, of the pay- 
 ment of wages otherwise than in money) is " indirectly 
 individualistic " and not " paternal " ; since its design is 
 merely to secure to labourers the amount of real wages that 
 is by contract fairly due to them, by preventing the 
 diminution of such real wages through the supply of goods 
 of inferior quality, at a price above their market value. 
 
 The truth is as the discussion of the conditions of 
 valid contracts showed us that it is a task of some delicacy 
 to define the individualistic principle, in relation to deception, 
 with the exactness required for practical application. When 
 it is affirmed that an " individual should be left to take 
 
 1 Even so decided an advocate of Laisser Faire as M. Paul Leroy- 
 Beaulieu considers that the ' ' pompiers volontaires qui Ton voit encore a 
 Londres " perform a function that had better be organised by government. 
 Revue des deux Mondes, 1888, iv. p. 931.
 
 IX PATERNAL INTERFERENCE 135 
 
 care of his own interests," some proviso is always under- 
 stood with regard to his protection against imposture : but 
 the precise nature of the proviso is left somewhat obscure ; 
 and it may be plausibly extended to prohibit any man from 
 knowingly profiting by the ignorance of another. And if 
 we go as far as this, it may be plausibly urged that it is 
 desirable, when possible, to go further, and prevent A from 
 profiting by the manifest ignorance of B, even when it is 
 shared by A ; especially considering the great difficulty of 
 ascertaining whether or not an impostor is self-deceived. 
 But when we have come to this point, the line between 
 individualistic and paternal interference will have practically 
 vanished. And even the rule that no one may knowingly 
 profit by the ignorance of another, if consistently applied to 
 commercial dealings, would carry us far beyond what any 
 individualist has ventured practically to recommend ; and 
 if it could ever be effectually carried out would seriously 
 impair the stimulus to the acquisition of useful knowledge 
 on which individualism relies. 
 
 On the whole, therefore, I think that we must interpret 
 the proviso above mentioned as merely prohibiting a man 
 from profiting by ignorance or error that he has con- 
 tributed, intentionally or negligently, to produce : and 
 it is on this view that I should define the limits, in 
 the cases above mentioned, of directly individualistic 
 interference. To prevent the flesh of diseased animals 
 from being disguised as the flesh of healthy animals ; to 
 prevent would-be surgeons or apothecaries from pretending 
 to have obtained certificates of qualification which they have 
 not really obtained ; to oblige employers who may have con- 
 tracted to pay wages in goods to supply such goods in strict 
 accordance with contract as regards quality and price ; all 
 this is clearly and directly individualistic : on the other 
 hand, if Government absolutely prohibits the purchase of 
 food it deems unhealthy, the consultation of physicians it 
 deems unqualified, the adoption of methods of payment it 
 deems unfit, its action is certainly what I have called 
 "paternal." But in many of these cases it is possible
 
 136 ELEMENTS OF POLITICS CHAP. 
 
 for Government to do more than prevent deception, without 
 incurring the chief objections to " paternal " intervention : 
 it may take measures to remove the ignorance of consumers 
 as to the dangerous qualities of commodities offered for 
 purchase, or the ignorance of labourers as to the dangerous 
 nature of instruments which their employers require them 
 to use, without compelling any one to act on the informa- 
 tion thus supplied. And such a procedure is, in my view, 
 within the limits of the " indirectly individualistic " inter- 
 vention of Government discussed in this chapter ; since its 
 aim is to protect individuals from mischief caused by the 
 action of others, the risk of which as they are supposed 
 not to know it they cannot be said to have consented to 
 run. We may assume that the great majority of persons 
 do not wish to shoot with gun-barrels that are liable to 
 burst, or to consume condiments rendered attractive by 
 poisonous colouring matter : l and if the dangerous quality 
 of these and other commodities can only be known by 
 technical skill, the coercion involved in raising by taxation 
 the required funds, to provide for the examination by 
 experts of such commodities before they are sold, is but a 
 slight price to pay for the consequent protection against 
 mischief. The consumer might still be left free to buy 
 unsafe guns or poisonous pickles if he chose. Similarly, 
 unseaworthy ships and unnecessarily dangerous machinery 
 might be examined and reported on by governmental experts, 
 without any positive prohibition of their use, in case 
 persons were found to run the risk of using them in spite 
 of full and clear warning. 
 
 4. In what I have said above I do not mean to imply 
 that all governmental interference which is undeniably 
 " paternal " ought therefore to be rejected without further 
 inquiry. I consider that so uncompromising an adhesion 
 to the principle "that men are the best guardians of their 
 own welfare " is not rationally justified by the evidence on 
 which the principle rests. I regard this principle as a 
 rough induction from our ordinary experience of human 
 1 See Jevons. The State in Relation to Labour, chap. ii.
 
 ix PATERNAL INTERFERENCE 137 
 
 life ; as supported on an empirical basis sufficiently strong 
 and wide to throw the onus probandi heavily on those who 
 advocate any deviation from it, but in no way proved to be 
 an even approximately universal truth. Hence, if strong 
 empirical grounds are brought forward for admitting a 
 particular practical exception to this principle if, e.g., 
 it is proved that men are largely liable to ruin themselves 
 by gambling or opium-srnoking, or knowingly to incur easily 
 avoided dangers in industrial processes it would, I think, 
 be unreasonable to allow these practices to go on without 
 interference, merely on account of the established general 
 presumption in favour of laisser faire. 1 The particular cases 
 in which such " paternal " intervention is on the whole 
 desirable must be determined by experience, and will 
 naturally vary with times and circumstances. We may, 
 however, lay down generally, that this kind of govern- 
 mental action shall be reduced within the narrowest limits 
 compatible with the attainment of the end in view: and 
 that it should, generally speaking, take as far as possible 
 some other form than that of directly commanding a man, 
 under penalties, to do what he does not like or not to do 
 what he likes for his own good. One indirect method of 
 paternal interference I have already noticed in the case of 
 drunkenness : it is possible, in this and similar cases, to reduce 
 greatly the total amount of attempted coercion by punishing 
 the trader rather than the consumer. Thus we may punish 
 the seller of lottery-tickets and not the purchaser : the keeper 
 of a gaming-house and not the gambler. For further illustra- 
 tion, let us consider the different ways in which Government 
 may intervene to secure adequate qualifications in any class 
 of professional men, e.g. physicians. Quackery is very mis- 
 chievous ; but it would be too violent an encroachment on 
 freedom to prohibit men from consulting a quack and taking 
 his advice ; or even to prevent this indirectly, by punishing 
 the quack as such ; since Government would thus present 
 
 1 I use this current phrase to mean the rule of "letting people manage 
 their affairs in their own way, so long as they do not cause mischief to others 
 without the consent of those others."
 
 138 ELEMENTS OF POLITICS CHAP. 
 
 itself to the quack's dupes in the odious position of standing 
 between a sick man and the recovery of his health. But with- 
 out any action of this irritating and strongly coercive kind, 
 Government may do much to reduce the mischief of quackery 
 in the following ways : 
 
 (1) It may, as was before said, institute an authoritative 
 certificate as a guarantee that the holder has gone through 
 a certain course of training, and may require an uncertificated 
 practitioner to abstain from concealing in any way the 
 absence of the certificate ; (2) it may give damages, or even, 
 in grave cases, enforce punishment, for grossly unskilful 
 treatment by an uncertificated practitioner, when the results 
 of such treatment have been clearly mischievous ; and finally 
 (3) it may refuse to uncertificated practitioners the legal 
 right of receiving fees from their patients. 
 
 This last is an example of a kind of interference which 
 it is important to distinguish and contemplate in a more 
 general way ; since it is free from one class of objections 
 commonly urged by advocates of laisser faire against the 
 extension of governmental interference. Such objections, 
 as we saw, are not solely based on the supposition that the 
 individual is the best guardian of his own interests ; it is 
 also urged that the efficiency of Government is likely to be 
 impaired by any considerable increase of its functions that 
 " the machine will break down through overwork," or that 
 the consequent increase of its power and patronage consti- 
 tutes a political danger. And, again, the importance of 
 minimising the direct annoyance caused by governmental 
 coercion is urged, not only because such annoyance is pro 
 tanto a diminution of happiness, but even more, because the 
 resulting discontent is politically dangerous. These objec- 
 tions I do not propose to discuss in detail here : but it is 
 obvious that they are all avoided when the influence of 
 Government on private action as in the case of the quack's 
 fees is exercised not by positive, but by negative inter- 
 ference, i.e. by declining to interfere. Several examples of 
 this may be found ; e.g. the right of self-defence and the 
 recapture of property, and the important family rights of
 
 ix PATERNAL INTERFERENCE 139 
 
 the husband and father, are mainly established by the with- 
 drawal of the ordinary protection of the law from the 
 persons against whose will these rights are or may be 
 exercised. So again, we noticed in dealing with the 
 conditions of valid contracts that there is a margin of 
 conduct mischievous in its effects which it would do more 
 harm than good to prevent by the more intense method of 
 prohibition and punishment, but which it may nevertheless 
 be expedient to prevent by declining to enforce contracts 
 which facilitate it : l the most important instances of this 
 are contracts of which the subject-matter involves sexual 
 immorality. The invalidation of oppressive usurious con- 
 tracts is a historic case of paternal interference falling under 
 the same general head. 
 
 Another important way in which Government may 
 practically determine the relations of private citizens without 
 coercion is by giving an authoritative interpretation to 
 ordinary contracts, in points left ambiguous by the words or 
 other signs actually used by the contracting parties. Thus, 
 in an ordinary contract of sale in England, a purchaser's 
 promise to pay twenty pounds is defined by Government to 
 mean a promise to pay at least eighteen gold sovereigns, of 
 full weight, together with either two sovereigns, or forty 
 shillings ; 2 or else to pay Bank of England notes for which 
 coin to the amounts above mentioned may be obtained on 
 demand. Bi-metallists urge that it would be desirable to 
 change the definition and interpret the promise as an under- 
 taking to pay either twenty gold sovereigns or silver coin 
 in a certain fixed proportion, or notes of the Bank of 
 England similarly redeemable in either metal. If this 
 measure were adopted, no one would be compelled to sell or 
 buy goods on these terms : any seller who chose might still 
 insist on receiving gold ; still it is most probable that the 
 effect of fixing this bi-metallic interpretation on all contracts, 
 
 1 It is to be observed that this refusal to enforce contracts is open to some 
 objection, as tending somewhat to weaken the very important moral habit 
 of fulfilling promises. 
 
 2 I omit, for simplicity, the alternative of paying twelvepence instead of 
 a shilling.
 
 ELEMENTS OF POLITICS 
 
 in which sums of money were mentioned without an express 
 limitation to gold, would be to bring both metals into 
 approximately equal use as currency. 
 
 This mode of interference is well adapted to the realisa- 
 tion of the " paternal " principle in a mild degree : but it is 
 probably more often used when the end in view is the 
 interest, not of the individual interfered with, but of the 
 community of which he is a member. 
 
 5. So far, in speaking of governmental coercion, 
 exercised in the interest of the person coerced, as " paternal," 
 I have had solely in view the coercion of sane adults. Of 
 course no individualist objects to coercion exercised on 
 children in their own interest : nor can it be seriously 
 maintained that the interests of a child can safely be left 
 altogether to its parents' care : still less, that they can be 
 altogether left to the care of any guardian that its parents 
 may designate. Hence some right (and duty) of governmental 
 interference, to protect children from mischief caused actively 
 or through neglect by their parents and guardians, must be 
 admitted in the strictest individualistic scheme. Thus the 
 limitations on the employment of children in factories and 
 workshops, which have now been adopted by most civilised 
 countries, are approved even by decided advocates of laisser 
 faire : and interference with the labour of women during 
 the period of childbearing is theoretically defensible on 
 similar grounds, as an indirect protection of the physical 
 wellbeing of children ; though it is beset with great practical 
 difficulties. 
 
 On the other hand, children can hardly be protected like 
 adults against personal confinement or assault, as these are 
 recognised as occasionally necessary means of educational 
 discipline. And, on the individualistic principle, since the 
 burden of rearing and training children should be, as far as 
 possible, thrown on their parents, it seems desirable, so far 
 as this burden is fairly taken up, that the parents' discretion 
 in the training of the child should be left as unfettered as 
 possible ; and that Government should only intervene in a 
 purely coercive way when the child's interests are manifestly
 
 ix PATERNAL INTERFERENCE 141 
 
 being sacrificed, either through the greed or passion of the 
 parents, or through gross neglect or ignorance. How far, 
 when the parents cannot afford to support or educate their 
 children, they should, under any conditions, receive pecuniary 
 aid from Government to enable them to discharge these 
 duties is, for individualists, a difficult and doubtful question. 
 On the one hand, when it is evident that children are, 
 through their parents' poverty, growing up in such a way 
 as to render them likely to be burdensome or dangerous to 
 society, it seems prima facie a prudent insurance against 
 this result for the community to assist in their support and 
 education. On the other hand, similar arguments may be 
 used to justify a governmental provision of sustenance for 
 adults, in order that they may not be driven into criminal 
 courses : and if either kind of governmental assistance is 
 once admitted as justifiable in principle, it is not very easy 
 to limit the burden that may be thrown on industrious and 
 provident individuals by the improvidence of others. At 
 any rate it seems clear that either question brings us to the 
 debatable territory between Individualism and Socialism ; 
 which I propose to examine in the following chapter. 1 
 
 For completeness, I may briefly note two cases of govern- 
 mental interference, ordinarily recognised as necessary, that 
 obviously do not fall within the application of the individual- 
 istic principle ; the humane treatment of lunatics, and the 
 prevention of cruelty to the inferior animals. In the latter 
 case the coercion is no doubt applied to protect the animals 
 in question from pain inflicted by other creatures : still the 
 protection does not in any degree aim at securing " freedom 
 of action " to the animals protected, but simply at the 
 prevention of unnecessary pain ; it is, if properly carried out, 
 
 1 To the same ambiguous region belongs the discussion of another kind 
 of governmental interference, which may be justified as indirectly individual- 
 istic : I mean the provision of machinery for bringing moral influence to bear 
 upon members of the community. The efficacy of this in diminishing the 
 danger of crime has been urged to justify the employment of public funds in 
 endowing Christian churches in modern states, and it cannot be denied that 
 there is some force in the argument : but the consideration of the proper 
 relations of Church and State cannot be adequately conducted from this 
 point of view alone. See Chap. XIII. 5, and Chap. XXVIII.
 
 I 4 2 ELEMENTS OF POLITICS CHAP, ix 
 
 a one-sided restraint of the freedom of action of men with a 
 view to the greatest happiness of the aggregate of sentient 
 beings. 1 
 
 In conclusion, it may be well to remind the reader that 
 the extent to which the kind of interference discussed in 
 the present chapter should be carried in a modern state will 
 partly depend upon a variety of considerations, the force of 
 which cannot here be estimated. Thus, we have to con- 
 sider the state of moral opinion in the community since 
 the repression of mischievous conduct by social disapproba- 
 tion may render legislative repression unnecessary ; the 
 diffusion of knowledge ; the customs, industrial and social, 
 actually prevalent ; and the development of the habit of 
 voluntary combination among the citizens. For example, 
 where a mischievous or dangerous custom prevails, which it 
 is difficult for an individual to avoid conforming to, there is 
 prima facie special need for legislative interference : on the 
 other hand, in proportion as the habit of combination is 
 developed, this need is diminished. 
 
 1 The protection of inferior races of men will be considered in a subsequent 
 chapter (XVIII.).
 
 CHAPTEE X 
 
 SOCIALISTIC INTEKFEKENCE 
 
 1. IT is universally recognised that the present drift of 
 opinion and practice is in the direction of increasing the 
 range and volume of the interference of government in the 
 affairs of individuals : and in current discussion the results 
 of this tendency are not uncommonly lumped together 
 under some such term as " State-Socialism " contrasted with 
 " Individualism." It is, I think, important to remove 
 the vagueness of thought that this simple antithesis 
 is liable to involve, by distinguishing the very different 
 issues that tend to be blended and confounded in this 
 opposition of terms. 
 
 This has, I hope, been partly effected by the discussion 
 in the preceding chapter. For we have seen that an 
 important part of the increasing interference of Government 
 which alarms old-fashioned advocates of laisser faire is not 
 really distinguishable in its principles and aims from the 
 kind of governmental action which the most vigorous 
 Individualism has always regarded as indispensable. That 
 is, its aim is the protection of individuals from harm to 
 person or estate caused, whether intentionally or carelessly, 
 by the action of other men : it merely seeks to make this 
 protection more effectual and complete. Take, for instance, 
 the important department of sanitary interference : it is 
 obvious that the mischief which one private person may 
 cause to others by making his house or business a focus of 
 disease is of a kind which all rational Individualists have
 
 144 ELEMENTS OF POLITICS CHAP. 
 
 always considered it within the province of Government 
 to prevent. It may happen, in any particular case, that 
 the remedy applied is ineffectual, or even if effectual, on 
 the whole more burdensome than the evil which it is 
 sought to remedy : but this is liable to happen in any 
 human adaptation of means to ends, and does not affect the 
 question of principle. And it is easy to see how new 
 occasions for this kind of interference may continually 
 arise : either because the mischief in question has been 
 increased or newly introduced through the closer massing 
 and more complicated relations of human beings which the 
 development of industry and civilisation brings with it ; or 
 because mischiefs of long standing have been unveiled by 
 the increased insight of advancing science, or possible 
 remedies hitherto unknown have been pointed out. 
 
 We have now to note further that the principle which 
 limits governmental interference to the prevention of 
 mutual interference among the governed, if maintained on 
 utilitarian grounds, requires for its justification two distinct 
 fundamental assumptions, one of which belongs rather to 
 psychology, while the other is purely sociological. It is to 
 the first of these that chief attention has been paid ; and it 
 is this which is mainly important when the discussion 
 relates to paternal interference. When the question is 
 whether Government should coerce individuals in their 
 own interest, it is argument enough on the negative side, 
 if it be granted that, in the matter under discussion, men 
 may be expected in the long run to discover and aim at 
 their own interests better than Government will do this 
 for them from their better opportunities of learning what 
 conduces to their own welfare, or from their keener and 
 more sustained concern for the attainment of this ; while, 
 further, this habit of self-help will give not only know- 
 ledge, but also self-reliance, activity, enterprise. 
 
 But, granting all this to be true, it by no means follows 
 that an aggregate of persons, seeking each his private 
 interest intelligently, with the least possible restraint, is 
 therefore certain to realise the greatest attainable happiness
 
 X SOCIALISTIC INTERFERENCE 145 
 
 for the aggregate. It is, indeed, obvious that if the mode of 
 action on the part of any one such individual which is 
 really most conducive to his own interest diverges from that 
 which is most conducive to the interest of all, then the 
 more completely he is left free to pursue the former end, 
 and the more skill he shows in the pursuit, the more 
 certain it is that he will not promote the latter in the 
 highest attainable degree. Hence, to complete the theoretical 
 argument for laisser faire, we require, besides the psycho- 
 logical proposition that every one can best take care of his 
 own interest, to establish the sociological proposition that 
 the common welfare is best attained by each pursuing ex- 
 clusively his own welfare and that of his family x in a 
 thoroughly alert and intelligent manner. 
 
 Now this latter proposition has been maintained, in a 
 broad and general way, by the main tradition of what is 
 called " orthodox political economy," since its emergence in 
 France in the middle of the eighteenth century. The argu- 
 ment may be briefly stated thus : Consumers generally i.e. 
 the members of the community generally, in their character 
 as consumers seeking each his own interest intelligently, 
 will cause an effectual demand for different kinds of pro- 
 ducts and services, in proportion to their utility to society ; 
 while producers generally, seeking each his own interest 
 intelligently, will be led to supply this demand in the most 
 economic way, each one training himself or being trained by 
 his parents for the most useful and therefore best rewarded 
 services for which he is adapted. Any excess of any 
 class of products or services will be rapidly corrected by a 
 fall in the price offered for them ; and similarly any de- 
 ficiency will be rapidly made up by the stimulus of a rise. 
 And the more keenly and persistently each individual 
 whether as consumer or producer pursues his private in- 
 terest, the more certain will be the natural punishment of 
 
 1 So far as the interests of children are concerned, we require the further 
 assumption that they can be safely left to the care of parents until the 
 children are able to provide for themselves : but for simplicity I omit this 
 point here. 
 
 L
 
 I 4 6 ELEMENTS OF POLITICS CHAP. 
 
 inertia or misdirected effort anywhere, and the more com- 
 plete consequently will be the adaptation of social efforts to 
 the satisfaction of social needs. 
 
 Now no one who, under the guidance of Adam Smith 
 and his successors, has reflected seriously on the economic 
 side of social life can doubt that the motive of self-interest 
 does work powerfully and continually in the manner above 
 indicated ; and the difficulty of finding any substitute for 
 it, either as an impulsive or as a regulating force, constitutes 
 the chief reason for rejecting all large schemes for recon- 
 structing social order on some other than its present in- 
 dividualistic basis. The socialistic interference for which, 
 in the present chapter, I propose to offer a theoretical jus- 
 tification is here only recommended as a supplementary 
 and subordinate element in a system mainly individual- 
 istic. At the same time, I think it important to show 
 by general reasoning that even as applied to a society 
 of " economic men " the sociological argument above 
 given is palpably inadequate to establish the practical 
 conclusion based on it by the more extreme advocates of 
 the " system of natural liberty." 
 
 With a view to methodical clearness, it is convenient to 
 begin by granting the assumption tacitly made in the 
 general economic argument that I have just given that 
 the higher market value of products and services consumed 
 by the rich, as compared with those consumed by the poor, 
 represents a correspondingly higher degree of utility to 
 society. I shall presently point out how paradoxical this 
 supposition is : but for formal clearness of discussion it is 
 as well to begin by making it ; since even on this supposition 
 it can, I think, be shown that there are several distinct 
 cases in which, under a strictly individualistic system of 
 governmental interference, the individual's interest has no 
 tendency or no sufficient tendency to prompt him to the 
 course of action most conducive to the common interest. 
 
 2. In the first place, it should be observed that the 
 argument above given, even if fully granted, would only 
 justify appropriation to the labourer, and free exchange
 
 X SOCIALISTIC INTERFERENCE 147 
 
 of the utilities produced by labour ; it affords no direct 
 justification for the appropriation of natural resources, which 
 private property in material things inevitably involves. 
 Hence, so far as this appropriation of natural resources 
 restricts other men's opportunities of applying labour pro- 
 ductively, the appropriation, as we have seen, is of doubt- 
 ful legitimacy, from the point of view of the strictest 
 individualism. It must, therefore, be regarded as theoreti- 
 cally subject to limitation or regulation, in the interest of 
 the whole aggregate of individuals concerned. How far this 
 limitation and regulation should go must be determined by 
 experience in different departments : but it may be laid 
 down generally that it is the duty of Government as repre- 
 senting the community to prevent the bounties of nature 
 from being wasted by the unrestricted pursuit of private 
 interest. Thus, for instance, Government may properly 
 interfere to protect mines and fisheries from wasteful 
 exhaustion, and save rare and useful species of plants from 
 extermination ; and, when necessary, may undertake or 
 control the management of natural watercourses, with a 
 view both to irrigation and to the supply of motive power. 
 And I conceive that measures of a much more sweeping 
 kind in the same direction including even the complete 
 abolition of private property in land are theoretically 
 defensible on the basis of individualism ; they have, indeed, 
 received the support of thoroughgoing advocates of this 
 doctrine. 1 
 
 1 The abolition of private ownership of land is not only emphatically 
 advocated in Mr. Herbert Spencer's early treatise on Social Statics which 
 does not altogether represent his later views it is also suggested as a 
 probable result of industrial development in his later treatise on Political 
 Institutions, chap. xv. pp. 540, 541. 
 
 I cannot regard as valid the historical reasoning which leads Mr. Spencer 
 to conclude that private ownership of land, having been "established by 
 force " and not by contract, is likely to disappear at a more advanced stage 
 of civilisation. But I quite admit it to be possible that a modern com- 
 munity, while maintaining generally the present merely individualistic 
 character of its laws and institutions, may ' ' resume the communal owner- 
 ship " of land, giving due compensation to existing owners : though, for 
 reasons which I have elsewhere given (Political Economy, Book iii. chap. vi. 
 5) I think that the economic disadvantages of such a change would
 
 148 ELEMENTS OF POLITICS CHAP. 
 
 Secondly, individuals may not be able at all, or with- 
 out inconvenience practically deterrent to remunerate 
 themselves by the sale of the utilities which it is for the 
 general interest that they should render to society. This 
 may be either because the utility is from its nature in- 
 capable of being appropriated, or because though un- 
 deniably important from the point of view of the community 
 its value to any individual is too uncertain and remote 
 to render it worth purchasing on grounds of private interest. 
 An example of the former is furnished by forests : since no 
 private landowner who maintains a forest can, by free 
 exchange, exact any return for such benefit as he may 
 confer on the community by its favourable influence on 
 climate in moderating and equalising rainfall. The other 
 case may be illustrated by scientific investigation generally ; 
 since most of the advances made in scientific knowledge, 
 even though they may be ultimately the source of important 
 material benefits to man's estate, would hardly remunerate 
 the investigator if treated as marketable commodities, and 
 only communicated to private individuals who were willing 
 to pay for them. 
 
 Even where the inconvenience of selling a commodity 
 would not be deterrent, the waste of time and labour that 
 the process would involve may be so great as to render it 
 on the whole a more profitable arrangement for the com- 
 munity to provide the commodity out of public funds. For 
 instance, no one doubts that it would be inexpedient to ' 
 leave bridges in towns generally to be provided by private 
 enterprise and paid by tolls. 
 
 We have also to take account of waste of time and 
 trouble in forming business connections, which seems an 
 inevitable incident of a competitive organisation of business. 
 
 outweigh its advantages, at the present stage of social and political develop- 
 ment. And I gather from chapters xi. and xii. and Appendix B of Mr. 
 Spencer's book on Justice (also published as Part iv. of his Principles of 
 Ethics) that this is Mr. Spencer's final view. 
 
 To prevent any misunderstanding, I ought to state explicitly that both 
 Mr. Spencer and I regard the proposal to confiscate the property of land- 
 owners without compensation as unworthy of serious discussion.
 
 SOCIALISTIC INTERFERENCE 149 
 
 Definite items of this economic loss are expressed in the 
 sums spent on advertisements, and in the promotion of 
 joint-stock companies. But to these we have to add the 
 much larger though less definite waste of labour spent in 
 rendering services of comparatively small utility, by traders 
 who have not yet established a business connection, or who 
 are slowly losing business through the pressure of competi- 
 tion or of industrial change ; l and the similar waste in the 
 case of professional services of all kinds. 
 
 Again, there is an important class of cases in which the 
 individuals have an adequate motive for rendering some 
 service to society, but not for rendering as much service as 
 it is in their power to render. These are cases in which 
 competition is excluded by natural or artificial monopoly 
 of the production or sale of a commodity. For the interest 
 of the monopolist of any ware is liable to conflict very 
 materially with the interest of the community ; since the 
 demand for a monopolised commodity is often of such a 
 nature that a greater total profit can be obtained from the 
 sale of a smaller quantity, owing to the extent to which the 
 price would fall if the supply were increased. The import- 
 ance of this case, it may be observed, tends to increase as 
 the opportunities for monopoly grow with the growth of 
 civilisation : partly from the increasing advantages of 
 industry on a large scale, partly from the increasing ease 
 with which combination among the members of any class 
 of producers is brought about and maintained. 2 
 
 1 It is to be added, that under competition this kind of waste may be 
 more than transient : since if an uneconomic superfluity of traders has been 
 once established in any department, competition may take effect in dividing 
 business among them, so as to keep the price of the traders' services high 
 while keeping his remuneration low. The remarkable success of artisans' 
 co-operative stores renders it probable that there is much waste of this kind 
 in the ordinary business of small retail traders. 
 
 2 It is noteworthy that economic arguments to prove the advantage of 
 "free competition" commonly assume that the notion of free competition 
 excludes monopoly resulting from combination : and yet the governmental 
 interference needed to repress such combination is manifestly contrary to 
 Individualism as a political principle, so far at least as the combination 
 is the result of perfectly uncoerced choice on the part of the persons 
 combining.
 
 i$o ELEMENTS OF POLITICS CHAP. 
 
 Combination resulting in monopoly may, as I have just 
 shown, be a source of economic loss to the community. On 
 the other hand, there are cases in which combined action 
 or abstinence on the part of a whole class of producers is 
 required to realise a certain utility, either at all or in the 
 most economical way : and in such cases the intervention of 
 Government, though not the only method of securing the 
 result, is likely to be the most effective method. If, indeed, 
 we could assume that all the persons concerned will act in 
 the most intelligent way, the matter might be left to volun- 
 tary association ; but in any community of human beings 
 that we can hope to see, the most we can expect is that the 
 great majority of any industrial class will be adequately 
 enlightened, vigilant, and careful, in protecting their own 
 interests : and where the efforts and sacrifices of a great 
 majority might be rendered useless by the neglect of one or 
 two individuals, it would be dangerous to trust to voluntary 
 association. The protection of land below the sea -level 
 against floods, or of useful animals and plants against 
 infectious diseases, are cases of this kind which we have 
 already noticed. 
 
 And the ground for governmental interference is still 
 stronger if the very fact of a combination among the great 
 majority of an industrial class to attain a given result 
 materially increases the inducement for individuals to stand 
 aloof from the combination. Thus, if it were ever so clearly 
 the interest of shopkeepers to close their shops on Sundays 
 or other holidays, provided the closing were universal, it 
 would still be very difficult to effect the result by purely 
 voluntary combination ; since the closing of a great number 
 of shops would obviously tend to throw custom into the 
 hands of the few who kept their shops open. 
 
 Even where the need of uniformity is not imperative, 
 voluntary combination is likely to be found inadequate for 
 the attainment of results of public importance, if the interest 
 of any individual in such results is indirect and uncertain ; 
 as may easily be the case even though the public interest 
 is plain and undeniable.
 
 x SOCIALISTIC INTERFERENCE 151 
 
 Finally, there are certain kinds of utility which Govern- 
 ment, in a well-ordered modern community, is peculiarly 
 adapted to provide. Thus, being financially more stable 
 than private individuals and companies, it can give com- 
 pleter security to creditors ; and is thus specially adapted 
 to undertake banking and insurance for the poor, and to 
 bear the responsibilities of a paper currency for the com- 
 munity generally. So again, it enjoys special facilities for 
 collecting and diffusing useful statistical information, a 
 point of growing importance in modern communities. 
 
 3. I have said enough to show that, even in the more 
 or less ideal society of intelligent persons which is contem- 
 plated in the traditional argument for laisser faire, there is 
 no reason to suppose that a purely individualistic organisa- 
 tion of industry would be the most effective and economical. 
 And the reasons above given largely explain and justify the 
 extent to which in modern States the provision of utilities 
 other than security from wrong is undertaken by Govern- 
 ment in the name of the community, or subjected to special 
 governmental regulations, instead of being left to private 
 enterprise ; on the ground that the interests of the whole 
 community will be better promoted by this arrangement. 
 Thus certain portions of the surface of the globe the 
 original raw material and instrument of industry have 
 always been held in common, as obviously more useful when 
 open to common use and enjoyment, and under common 
 management, so far as management is needed : and the 
 labour required to keep them in good condition has been 
 imposed or provided by Government. Eoads, and commons 
 for recreation, come under this head : also seas and large 
 rivers, in which navigation and fishery have been common 
 to all, under governmental regulation ; also forests to a con- 
 siderable extent. And it is to be noted that, in certain 
 important respects, the need of systematic governmental 
 intervention to modify man's physical environment tends 
 to grow as the cultivated area of land extends with grow- 
 ing civilisation : as in the case of interference with the 
 natural flow of surface waters, with a view to better irriga-
 
 152 ELEMENTS OF POLITICS CHAP. 
 
 tiori and drainage, and in that of the artificial maintenance 
 of forests, especially needed on high tablelands and mountain 
 slopes. 
 
 Further, in modern civilised communities generally, the 
 private ownership of land is held to be limited by a general 
 right of the community to take compulsorily the land of 
 any individual, when required for the most economic attain- 
 ment of an important public utility, at the value that it 
 would have had apart from this public need : l and in recent 
 times this right has been exercised in very important cases, 
 the most important being the construction of the artificial 
 roads and waterways which have transformed modern trade 
 and industry. It is true that canals and railways have 
 been largely constructed by private enterprise ; but they 
 have usually needed for economical construction the inter- 
 vention of Government to give the power of buying land 
 compulsorily : and as this power has been granted on 
 account of the public utility of the enterprise, the manage- 
 ment of canals and railways even where it has been left 
 in the hands of private companies has been placed under 
 governmental regulation, and assumed a semi-public char- 
 acter. That a certain amount of such regulation is legiti- 
 mate and required in the interests of the community, is 
 admitted even by leading advocates of laisser faire. 
 Whether governments should actually undertake the con- 
 struction and management of railways is a more doubtful 
 question, on which there has been much divergence in 
 practice : still, important though not decisive arguments 
 for this measure are furnished by (1) the value to a political 
 community of facilities for mutual intercourse and rapid 
 communication among its different elements ; 2 and (2) the 
 economic advantage of a coherent organisation of railway 
 traffic, and the consequent tendency of railways to fall 
 more and more under the conditions of partial monopoly, so 
 
 1 See Chap. XII. 2. 
 
 ' It should be observed that so far as this value lies in the increased ease 
 of maintaining order, it comes rather under the head of the "indirect 
 individualistic " interference discussed in the preceding chapter.
 
 x SOCIALISTIC INTERFERENCE 153 
 
 that many of the advantages of competition are lost to the 
 public. 
 
 On similar grounds the business of communication by 
 letters and telegrams has been found suitable for Government 
 chiefly through the economic gain that results from 
 having the whole work done by a single organisation : and 
 it is, in fact, undertaken by almost all modern governments. 
 So again, the ordinary advantages of competitive industry 
 can hardly be realised in providing for the water-supply 
 and by modern methods for the lighting of towns: 
 accordingly, these businesses, in modern times, tend to 
 assume a semi -public character, being either undertaken 
 by municipal governments or subjected to special govern- 
 mental regulation. Further, modern governments uni- 
 versally monopolise coinage, and regulate in some degree 
 the business of banking : interventions chiefly justified 
 by the great public importance of giving security and 
 stability to the current medium of exchange. 1 
 
 In a wide sense of the term, these and similar kinds of 
 governmental interference may all be called " Socialistic " in 
 principle ; since they tend to narrow the sphere of private 
 property and private enterprise, by the retention of resources 
 and functions in the hands or under the regulation of 
 Government as representing the community. Such inter- 
 ference differs very much in intensity in different cases ; 
 according as Government (1) merely regulates, and perhaps 
 sub vents, or (2) itself undertakes a department of business, 
 or (3) establishes a legal monopoly of the business in its 
 own favour as in the case of the post-office in England. 
 But the term " Socialistic " may be fairly applied to this 
 kind of intervention, whatever its degree of intensity, if it 
 is used in simple opposition to " Individualistic." This 
 meaning of the term, however, must be carefully dis- 
 tinguished from another and I think more common 
 meaning, in which " Socialism " is understood to imply 
 
 1 For the purposes of the present discussion, it is not necessary to consider 
 the distribution of functions between central and local governments ; which 
 will be discussed in a later chapter.
 
 154 ELEMENTS OF POLITICS CHAP. 
 
 a design of altering the distribution of wealth, by bene- 
 fiting the poor at the expense of the rich. For though 
 such effects on distribution may in some cases result from the 
 measures above mentioned, their primary aim is not to give 
 advantage to one section of the community at the expense of 
 another, but to secure benefits to the community as a whole 
 which tend to be distributed among its members generally 
 though in a way difficult exactly to trace and apportion. 
 4. The same may be said of much of the public 
 expenditure that most modern communities recognise as 
 desirable for the promotion of education, general, technical, 
 or professional. So far as public funds spent on education 
 tend to make labourers more efficient, though the labourers 
 will be thereby enabled to earn more wages, the employers 
 of labour and the consumers of its products will, generally 
 speaking, share in the gain resulting from the increased 
 efficiency ; so that we may regard such expenditure as 
 primarily designed to benefit the community as a whole by 
 improving its production, though much of it has also an 
 important tendency to mitigate the inequalities in the dis- 
 tribution of wealth. It may perhaps be objected that if 
 this expenditure were really profitable to the community, 
 it would be remunerative to individuals to undertake it, and 
 it might therefore be left to private enterprise. But this 
 does not necessarily follow ; since the labourers in . question 
 or their parents may be unable to provide the requisite 
 means, while the difficulty of making effectual contracts with 
 the labourers or their parents, and the trouble and expense 
 of enforcing such contracts, may suffice to render the pro- 
 vision of such means an undesirable speculation for other 
 private individuals. On similar grounds, the expenditure 
 of public money in transferring human beings from over- 
 populated to underpopulated regions, within the territory 
 of the same community, may be ultimately profitable to the 
 community as a whole, from the increased efficiency of the 
 labour thus transferred, although it would not present a 
 profitable sphere for private enterprise. 1 
 
 1 The conditions under which such expenditure is to be recommended
 
 x SOCIALISTIC INTERFERENCE 155 
 
 The question of public provision for education is not, 
 however, commonly viewed in relation to industrial efficiency 
 alone. It is widely held to be in the interest of the 
 community at large and not merely of the poorer classes 
 primarily benefited that public funds should be employed 
 in the moral and intellectual improvement of its members 
 generally, by the maintenance of religious teaching and 
 worship, and the promotion of scientific and literary culture, 
 through the means not only of schools for the young, but 
 also of museums, libraries, and universities for adults. So 
 far as this view is sound, all such expenditure may be 
 classed as Socialistic in the wider sense above explained. 
 
 The propriety of governmental provision for, and regula- 
 tion of, moral and religious teaching will be more suitably 
 discussed after we have considered the general relations of 
 Law and Morality. 1 The promotion of secular culture might 
 doubtless to a great extent be adequately provided for by 
 private enterprise, if the aim of benefiting the poorer classes, 
 by bringing about a more equal distribution of the capacities 
 and opportunities of living cultivated lives, were left out of 
 consideration. Still a considerable amount of public ex- 
 penditure under this head may be justified, apart from any 
 such distributional aim. In the first place, as we have 
 already observed, the social utility furnished by scientific 
 discoveries is generally unsaleable, except in the cases in 
 which it can be immediately turned to account in some 
 technical invention : it is therefore reasonable that a certain 
 number of persons who have proved themselves capable of 
 advancing knowledge 2 should receive salaries from public 
 funds : and that public provision should be made for the 
 
 and the distribution of the burden it imposes, will be discussed hereafter, 
 when we come to treat of the expansion of States. See Chap. XVIII. 4. 
 
 1 See Chap. XIII. 4. 
 
 a I do not mean physical science alone : the general argument used would 
 support the endowment of any branch of knowledge which may reasonably 
 be expected to furnish "fruit," beyond the mere gratification of refined 
 curiosity. Whether the mutual relations of the different branches of know- 
 ledge are such that none could be properly excluded from the benefit of this 
 argument, is an interesting question which I have not space to discuss here.
 
 156 ELEMENTS OF POLITICS CHAP. 
 
 costly instruments required for the effective performance of 
 scientific research : such as libraries, museums, laboratories, 
 observatories, and their equipment. Again, the expenditure 
 of money on educational machinery, to bring opportunities 
 of good scientific instruction within the reach of children 
 of comparatively poor parents who show decided scientific 
 ability, may be justified by the consideration of the increased 
 chance thus obtained of scientific discoveries and technical 
 inventions valuable to the community at large. Similarly, 
 the provision for literary and artistic instruction given by 
 public maintenance of libraries and picture galleries, and 
 endowment of teachers and students, may be expected to 
 benefit the community at large by aiding the development 
 of talents that might otherwise have been crushed beneath 
 adverse circumstances. Moreover, though there is no such 
 need of providing salaries for artists and men of letters 
 generally, as we have seen in the case of savants, since the 
 utility of artistic products can be appropriated and sold ; 
 still, apart from any special consideration for the poor, it 
 would seem that the advantage to the community of the 
 best obtainable appliances for artistic and literary instruc- 
 tion and study has too indirect and remote a connection 
 with the interests of individuals to be safely left altogether 
 for private enterprise. Up to a certain point, then, in 
 all these cases, the benefit of the community as a whole 
 may be taken as the primary aim of the intervention of 
 Government. 
 
 5. Finally, I may remind the reader that as we have 
 had occasion to notice in earlier chapters governmental 
 intervention in the interest of the community, going beyond 
 the mere protection of individuals from mischief, takes place 
 to an important extent in different departments of civil 
 law, as determined in modern states generally. Sometimes 
 the occasion for intervention arises on points which do not 
 strictly fall within the limits of the application of the 
 individualistic principle, or cannot be clearly determined by 
 it ; as in the case of the regulation of land tenure, especi- 
 ally in countries incompletely populated, and some of the
 
 X SOCIALISTIC INTERFERENCE 157 
 
 limitations on free bequest. In other cases the interest of 
 the community at large, as understood in all civilised 
 countries, is held to override the conclusions to which a 
 consistent individualism would lead. A case of this latter 
 class, in the department of property, is found in the 
 limitation in time of literary copyright, as compared with 
 the perpetual protection given to the right of property in 
 material things : since the only tenable grounds for treating 
 the ideal products of intellectual labour differently from the 
 products of labour " embodied " in matter lie in the obvious 
 increase of utility to the community that results from the 
 termination of the literary producer's monopoly, together 
 with the absence of any danger, in the case of valuable 
 literary products, that their utility may be diminished 
 through want of care, as is largely the case with the 
 material products of labour. But the most important 
 interventions of this kind occur in the department of 
 contract. Thus, in the whole law of bankruptcy in modern 
 states, the fundamental individualistic rule of enforcing 
 reparation for the breach of a contract freely entered into 
 is manifestly overridden by considerations of general utility. 
 Still more important are the restrictions on the freedom of 
 connubial contracts, imposed by the marriage laws of modern 
 communities generally ; and along with these I may class 
 any legal restraints on the sexual intercourse of unmarried 
 persons, and prohibitions of the sale of pictures, books, etc., 
 provocative of sexual desire ; since all such interferences 
 with freedom are, I conceive, ultimately justified by the 
 paramount interest that the community has in providing 
 for the proper rearing of children. In all these cases, and 
 others that might be mentioned, the interest of the com- 
 munity at large as distinct from that of the individuals 
 primarily concerned supplies both the general justification 
 for the legislative and administrative interference required, 
 and the criterion by which any particular questions relating 
 to such interference should be determined. 
 
 6. Let us now turn to consider how far the action of 
 government should be directed to the end which would be
 
 158 ELEMENTS OF POLITICS CHAP. 
 
 commonly called " socialistic " in a narrower sense than that 
 in which I have so far used the term, the diminution of 
 the marked inequalities in income which form so striking a 
 feature of modern civilised societies. Here, first, it should be 
 observed that some effect of this kind tends to be produced 
 by any successful assumption of industrial functions by 
 Government : since the most marked inequalities of private 
 wealth are due directly or indirectly to the unequal dis- 
 tribution of capital (including land) ; and any successful 
 extension of the industrial functions of Government tends 
 to increase the stock of capital owned by the community, 
 and reduce the field of employment for private capital. 
 Accordingly, a main aim of current Socialism in its extremest 
 form we may distinguish it as Collectivism is to substi- 
 tute common for private ownership, and governmental for 
 private management, of the instruments of production in all 
 important departments of industry : so that the payment of 
 interest on industrial capital may cease and " labour receive 
 its full reward." Such a scheme has much attraction for 
 thoughtful and sympathetic persons ; not only from its 
 tendency to equalise wealth, but also from the possibilities 
 it holds out of saving the waste and avoiding the unmerited 
 hardships incident to the present competitive organisation 
 of business ; and of substituting industrial peace, mutual 
 service, and a general diffusion of public spirit, for the 
 present conflict of classes and selfish struggles of individuals. 
 In discussing this scheme from the point of view of 
 general theory, it will be well not to complicate the issue by 
 supposing the change to be introduced suddenly or with 
 violence : we may suppose it to take place gradually, with 
 due regard to the rights of existing proprietors of the instru- 
 ments of production. As so considered, the question of its 
 expediency primarily turns on a comparison of governmental 
 management of business with private competitive manage- 
 ment : and it is reasonable to suppose further that, 
 before the final transition to Collectivism takes place, our 
 experience of the qualifications of Government for carrying 
 on different kinds of industry will have been materially
 
 x SOCIALISTIC INTERFERENCE 159 
 
 increased by partial extensions of its sphere of action. It 
 is, I think, quite conceivable that, through improvements in 
 the organisation and working of governmental departments, 
 aided by watchful and intelligent public criticism together 
 with a rise in the general level of public spirit throughout 
 society the results of the comparison above mentioned will 
 at some future time be more favourable to governmental 
 management than they have hitherto been. At present, a 
 wide experience would seem in most cases to support 
 strongly the judgment of the overwhelming majority of 
 political economists in favour of private competitive manage- 
 ment of industry carried on under ordinary conditions : as 
 securing an intensity of energy and vigilance, an eager 
 inventiveness in turning new knowledge and new oppor- 
 tunities to account, a freedom and flexibility in adapting 
 industrial methods to new needs and conditions, a salutary 
 continual expurgation of indolence and unthrift, which 
 public management cannot be expected to rival in the 
 present state of social morality, and for the loss of which it 
 cannot compensate, except under specially favourable con- 
 ditions. We may therefore infer that leaving out of 
 account the disturbances of the transition the realisation 
 of the Collectivist idea at the present time or in the 
 proximate future would arrest industrial progress ; and that 
 the comparative equality in incomes which it would bring 
 about would be an equality in poverty : even supposing 
 population not to increase at a greater rate than at present, 
 as it must be expected to do if work and adequate sustenance 
 were secured to all members of the community, unless 
 measures of a novel and startling kind were taken to 
 prevent the increase. 
 
 A full discussion, however, of Collectivism, including a 
 critical exposition of the economic arguments urged in 
 favour of it, would be out of place here : it falls more properly 
 within the sphere of Political Economy. But there is an 
 important part of the work actually undertaken by modern 
 governments which must be admitted to be " socialistic " in 
 the narrower sense of the word : that is, which has for its
 
 160 ELEMENTS OF POLITICS CHAP. 
 
 main object I will not say " the equalisation of wealth," as 
 that would suggest an aim to which the means used are 
 wholly disproportionate, but the mitigation of the harshest 
 inequalities in the present distribution of incomes. The 
 most obvious examples of this are to be found in the large 
 expenditure incurred in various forms for the relief of the 
 indigent ; but I conceive that a part at least of the expendi- 
 ture on education which modern states generally agree to 
 regard as desirable has been undertaken on this ground, 
 and requires this for its justification. And there is a strong 
 drift of opinion at the present time in favour of further 
 legislation in this direction. I propose, therefore, without 
 considering in detail the adaptation of means to ends in 
 particular measures of this kind, or the special dangers and 
 drawbacks attending them to point out certain general 
 considerations which must to some extent govern our esti- 
 mate of the expediency of all such schemes. 
 
 In the first place, it seems to me indubitable that the 
 attainment of greater equality in the distribution of the 
 means and opportunities of enjoyment is in itself a desirable 
 thing, if only it can be attained without any material sacri- 
 fice of the advantages of freedom. I cannot accept the 
 assumption so far granted for the sake of simplifying the 
 discussion that the utility to the community of services 
 rendered to the rich may be measured by their market 
 value : I conceive, on the contrary, that the support of 
 common sense may be claimed for Bentham's view, that 
 any given quantum of wealth is generally likely to be 
 less useful to its owner, the greater the total of private 
 wealth of which it forms a part. It is an accepted economic 
 principle illustrated by the general effect of an increase 
 of supply on the price of any article that the utility of a 
 given quantum of any particular commodity to its possessor 
 tends to be diminished, in proportion as the total amount of 
 the commodity in his possession is increased ; and Bentham's 
 proposition is merely an extension of this principle to the 
 aggregate of commodities which we call wealth. 
 
 There are, no doubt, counterbalancing considerations
 
 x SOCIALISTIC INTERFERENCE 161 
 
 which ought not to be overlooked. Any great equalisation 
 of wealth would probably dimmish the accumulation of 
 capital, on which the progress of industry depends ; and 
 would deteriorate the administration of the capital accumu- 
 lated ; since the most economic organisation of industry, 
 under existing conditions, requires capital in large masses 
 under single management, and the management of borrowed 
 or joint-stock capital is likely to be, on the average, inferior 
 to that of capital owned by the manager. Moreover, the 
 effective maintenance and progress of intellectual culture 
 which is a necessary condition of its effective diffusion 
 seems to require the existence of a numerous group of 
 persons enjoying complete leisure and the means of ample 
 expenditure ; since the disinterested curiosity that is the 
 mainspring of the advance of knowledge, and the refinement 
 of taste that leads to the development of art, can hardly 
 find free play and the fostering influence of sympathy except 
 within such a group, although they may be found in a high 
 degree in individuals outside it. 
 
 Still, after allowing all weight to such arguments as 
 these, I cannot doubt that at least a removal of the extreme 
 inequalities, found in the present distribution of wealth 
 and leisure, would be desirable, if it could be brought 
 about without any material repression of the free develop- 
 ment of individual energy and enterprise, which the 
 individualistic system aims at securing. When from 
 this point of view we examine the various legislative 
 measures which have a " Socialistic " aspect in the narrower 
 sense of appearing to aim at a diminution of inequalities of 
 wealth we find that they differ very markedly in the 
 manner and degree in which they come into conflict with 
 the principle of Individualism. Some of these measures 
 must be admitted to diminish the inducements to industry 
 and thrift, without any counterbalancing tendency to stimu- 
 late labour by enlarging its opportunities ; they simply and 
 nakedly take the produce of those who have laboured 
 successfully to supply the needs of those who have laboured 
 unsuccessfully or not at all. I am afraid that the English 
 
 M
 
 1 62 ELEMENTS OF POLITICS CHAP. 
 
 system of poor relief though it has many merits that 
 ought not to be undervalued or lightly lost must be 
 admitted to have this fundamental defect. Others again 
 involve restrictions on freedom that are frankly and uncom- 
 promisingly anti-individualistic; to this class belongs the 
 proposal to fix by law a maximum length of day's labour for 
 adults so far as this prevents any individual labourer from 
 rendering the amount of service to society which he and his 
 employer agree in thinking it their common interest that he 
 should render. 1 But there are other measures designed for 
 the benefit of the poor which do not come under either of 
 these heads ; measures of which the primary aim is not to 
 redistribute compulsorily the produce of labour, but to 
 equalise the opportunities of obtaining wealth by productive 
 labour, without any restriction on the freedom of adults. 
 State aid to emigration is an example of this class, and a 
 part at least of the expenditure on education must be held 
 to belong to it. Now measures of this kind, however 
 Socialistic, are not in their primary aim opposed to Indi- 
 vidualism; since we obviously increase instead of diminishing 
 the stimulus to self-help and energetic enterprise by placing 
 a man in a position to gain more than he could otherwise 
 have done by the exercise of these qualities. In fact, in the 
 general reasoning by which political economists have tried 
 to prove that laisser faire supplies the greatest possible 
 stimulus to the development of useful qualities, equality 
 of opportunity has often been tacitly assumed or at least, 
 the loss to the community arising from the restricted oppor- 
 tunities of large masses has been tacitly overlooked. So far 
 as the community, acting through its government, can 
 equalise opportunities, without doing harm in any other way, 
 
 1 Such a measure may be justified on the principle applied in justifying 
 a compulsory weekly holiday if the excess of daily labour prevented is 
 injurious to the labourer's efficiency, so that the average effectiveness of a 
 day's labour might be expected not to be materially diminished by the 
 restriction. But so far as the admitted effect of the measure is to diminish 
 materially the amount of daily service rendered by the labourer to society, 
 I think that no government ought to take the responsibility of causing the 
 consequent loss of wealth to individuals and to the community as a whole.
 
 x SOCIALISTIC INTERFERENCE 163 
 
 such interference actually gives greater scope for the admitted 
 advantages of the individualistic system to be attained. 
 
 " But," it may be said, " this equalisation of opportunities 
 as e.g. by State aid to education or to emigration in- 
 evitably costs money and usually a good deal of money, 
 which has to be raised by taxation ; and thus in its taxa- 
 tional aspect it comes to be opposed to the individualistic 
 principle, though it may not be so in its primary aim. A 
 portion of A's income has to be taken to enable B to labour 
 under better conditions, and in this way that absolute 
 security to the fruits of the individual's labour, at which 
 individualism aims, is inevitably impaired." 
 
 This argument, however, ignores the fact pointed out 
 in a previous chapter l that the institution of private pro- 
 perty as actually existing goes beyond what the individual- 
 istic theory justifies. Its general aim is to appropriate the 
 results of labour to the labourer, but in realising this aim 
 it has inevitably appropriated natural resources to an extent 
 which, in any fully peopled country, has entirely discarded 
 Locke's condition of " leaving enough and as good for 
 others." In any such country, therefore, the propertied classes 
 are in the position of encroaching on the opportunities of 
 the unpropertied in a manner which however defensible as 
 the only practicable method of securing the results of labour 
 yet renders a demand for compensation justifiable from 
 the most strictly individualistic point of view. It would 
 seem that such compensation may fitly be given by well- 
 directed outlay, tending either to increase the efficiency and 
 mobility of labour, or to bring within the reach of all 
 members of a civilised society some share of the culture 
 which we agree in regarding as the most valuable result of 
 civilisation : and in so far as this is done without such 
 heavy taxation as materially diminishes the stimulus to 
 industry and thrift of the persons taxed, this expenditure 
 of public money, however justly it may be called Socialistic, 
 appears to be none the less defensible as the best method of 
 approximating to the ideal of Individualistic justice 
 1 See Chap. V. 2.
 
 164 ELEMENTS OF POLITICS CHAP. 
 
 7. But such provision as has been found practicable for 
 equalising opportunities of labour is not, in any modern 
 state, sufficient to protect the whole population from the 
 evils of extreme indigence. In most modern states an 
 important percentage of the population are, at any given 
 time, temporarily or permanently incapacitated from provid- 
 ing themselves with the necessaries of life. In many cases 
 no doubt this incapacity is due to some kind of marked ill 
 desert such as drunkenness, or loss of employment through 
 neglect of duty and in many other cases it might have 
 been avoided by an exercise of prudence not unduly severe. 
 But in an important minority of instances the affliction of 
 indigence is due to misfortunes which the persons afflicted 
 cannot reasonably be blamed for not foreseeing; and even 
 where this is not the case, probably few individualists are 
 able to regard starvation as the appropriate penalty for im- 
 providence, or even for worse faults. At the same time, the 
 inexpediency of leaving the relief of indigence entirely to 
 unsystematised private almsgiving liable as that is to " do 
 too much or too little," and to be largely imposed upon 
 is now generally recognised. It seems, therefore, that the 
 problem must be taken in hand by Government in some 
 manner and degree. On the other hand, the simple course 
 of securing to the indigent adequate relief from public funds 
 even if such relief is limited to the bare necessaries of life 
 involves the risk of a serious diminution of the induce- 
 ments to industry and thrift in the case of persons struggling 
 on the verge of indigence. 
 
 The grave difficulties of the problem thus presented to 
 Government are recognised by all thoughtful persons, and it 
 is not surprising that widely different methods should be 
 proposed, and to a great extent adopted by different Govern- 
 ments, in dealing with these difficulties. The plan involving 
 the minimum of divergence from individualism is that in 
 which Government maintains an agency for the systematic 
 and careful relief of indigence, but requires the relief given 
 to be provided mainly by voluntary contributions. This 
 speaking broadly, is the French system ; it has the advan-
 
 x SOCIALISTIC INTERFERENCE 165 
 
 tage of avoiding, so far as it operates, the demoralisation 
 and waste caused by mendicity and unregulated private 
 almsgiving, without incurring the evils of forcing the in- 
 dustrious and thrifty to contribute to the support of the 
 idle and improvident. But its efficiency, depending as it 
 does on the adequacy of the spontaneous gifts of individuals, 
 is inevitably precarious ; and, where imprisonment is an 
 ordinary punishment for crime as it is in modern states 
 generally this system, if exclusively adopted, would always 
 be liable to the objection that the Government guarantees 
 to criminals a provision for their physical needs which it 
 refuses to non-criminals. This objection is avoided by the 
 English plan ; which secures adequate sustenance from 
 public funds to all persons who are in complete destitution, 
 while it aims at minimising the encouragement thus offered 
 to idleness and un thrift by attaching unattractive though 
 not physically painful conditions to the public relief given 
 to ordinary adult paupers. Practically, it succeeds better 
 as regards industry than thrift. So far as able-bodied men 
 are concerned, experience has shown that the required com- 
 bination of unattractiveness with sufficiency of provision 
 for physical needs is attainable by insisting that the 
 recipient of relief shall submit to the constraints of a 
 " workhouse." But the system has hitherto failed to bring 
 about the general provision against old age, which for the 
 most part might be made without difficulty even by 
 unskilled labourers in the period of early manhood, if they 
 were content to defer marriage for a moderate term of years. 
 Further, it would be unpractically severe to insist on the 
 condition of entering the workhouse in the temporary dis- 
 ablement of breadwinners through sickness or accident ; 
 while to dispense with it even in these cases involves a 
 serious discouragement to providence. These evils are 
 avoided by the German method so far as it can be applied 
 of compulsory insurance against sickness, accidental dis- 
 ablement, chronic infirmity, and old age. This method, it 
 may be observed, involves governmental interference, which 
 is in one aspect greater than that entailed by the English
 
 166 ELEMENTS OF POLITICS CHAP. 
 
 method, since the provision compulsorily made extends to 
 labourers generally, whereas the English system only pro- 
 vides for the destitute : on the other hand, the method of 
 compulsory insurance is, from another point of view, less 
 anti-individualistic, so far as the burden of the provision is 
 thrown on the persons who receive the benefit of it. 1 
 
 Probably a careful combination of the three methods that 
 I have briefly distinguished regulated private almsgiving, 
 public relief, and compulsory insurance would at present 
 give us the practically best plan of dealing with the 
 problem of pauperism. How the whole function of poor-relief 
 should be distributed among the three methods is a question 
 that arouses a steadily increasing interest at the present 
 time ; but it is difficult to give to it a general theoretical 
 answer of any value. 2 Here I will only say that the proper 
 nature and limits of governmental action for the relief of 
 indigence must largely depend upon (1) the actual extent 
 and effectiveness of voluntary association among the citizens, 
 and (2) on the amount of philanthropic effort and sacrifice 
 habitually devoted by private persons to the supply of 
 social needs, and the wisdom with which these efforts and 
 sacrifices are directed. A similar observation may be made 
 in reference to other departments of the interference of 
 Government, which I have called " socialistic " whether 
 in the wider or the narrower sense of the term. Thus 
 we actually find that the promotion of education and 
 culture, and the cure of diseases, have been largely provided 
 for in modern civilised communities though to an extent 
 varying very much from one state to another by the dona- 
 tions and bequests of individuals. So far as these needs 
 can be adequately met in this way, there is an advantage in 
 avoiding the necessity for additional taxation, which hardly 
 
 1 This is only partially the case in the system actually adopted in 
 Germany. It would be nearly attained if the plan of insurance against 
 sickness and old age, which has for many years been ably and energetically 
 advocated by Canon Blackley, were successfully carried into effect. 
 
 2 Perhaps in a few years' time important light will have been thrown on 
 this question by the fuller experience which will then have been obtained 
 of the working of the recent German legislation.
 
 x SOCIALISTIC INTERFERENCE 167 
 
 needs demonstrating, but which will be brought prominently 
 before the reader's mind in the course of the next chapter. 
 And it ought here to be noted that if the State intervenes 
 at all in any department that has been hitherto left to 
 private beneficence, there is a serious danger of the latter 
 withdrawing from it, unless the spheres of action appro- 
 priate to the two agencies respectively are well and clearly 
 defined ; since men who will spend money freely to provide 
 for a social need which would otherwise remain unprovided 
 for, will not be equally disposed to spend it to reduce the 
 drain on the public treasury. 
 
 Before concluding, I may again remind the reader that 
 governmental action has certain disadvantages of which the 
 precise nature and importance will vary with variations in 
 the structure of government, and in the relations established 
 whether by constitutional law or constitutional morality 
 between the governors and the governed. I mean such 
 disadvantages as (1) the danger of overburdening the govern- 
 mental machinery with work, 1 (2) the danger of increasing 
 the power capable of being used by governing persons op- 
 pressively or corruptly, (3) the danger that the delicate 
 economic functions of government will be hampered by the 
 desire to gratify certain specially influential sections of the 
 community : for instance, when legislation is in the hands 
 of a representative assembly, the more the functions of 
 Government are extended in a socialistic direction, the 
 greater becomes the risk that contested elections will 
 exhibit an immoral competition between candidates pro- 
 mising to procure public money for the benefit of particular 
 classes and districts. When, along with these dangers, we 
 take into account that the work of government must be 
 done by persons who even with the best arrangement for 
 effective supervision and promotion of merit can only have 
 a part of the stimulus to energy and enterprise which the 
 
 1 As I shall explain in Chapter XIX. the disadvantages of increasing 
 the work of government may be in ' some cases avoided by placing public 
 funds and functions in the hands of private corporations under govern- 
 mental supervision.
 
 1 68 ELEMENTS OF POLITICS CHAP, x 
 
 independent worker feels, it will be easily understood that 
 we are not justified in concluding that governmental inter- 
 ference is always expedient, even where laisser faire leads 
 to a manifestly unsatisfactory result ; its expediency has to 
 be decided in any particular case by a careful estimate of 
 advantages and drawbacks, requiring data obtained from 
 special experience. 
 
 NOTE. It has seemed to me most convenient to reserve the consideration 
 of governmental interference with foreign trade of which the reader may 
 naturally expect to find a discussion in the present chapter until I come to 
 treat of the " Principles of External Policy " (Chap. XVIII.).
 
 CHAPTEE XI 
 
 THE MAINTENANCE OF GOVERNMENT 
 
 1. A CENTURY ago, it appeared to a thoughtful writer l that 
 the institution of Government however indispensable under 
 existing conditions must inevitably die 1 out before the 
 advance of human reason ; and even now, when the pendulum 
 of thought has swung in the opposite direction, the extreme 
 fanatics among social reformers appear to be still divided or 
 hesitating between "Anarchy and Panarchy." These wild 
 imaginings do not concern us : but it is important to bear 
 in mind that the cost in coercion, money, and services, that 
 is generally required to keep up any part of the work of 
 government, is in itself a sacrifice from a social point of view ; 
 and that consequently, in determining the limits of govern- 
 mental interference in any particular case, on the lines which 
 our previous discussion has drawn, the consideration of this 
 cost is never to be overlooked, and may be of decisive import- 
 ance : since here, as in private affairs, the question whether 
 a certain utility should be sought in a certain way may 
 depend on the price that has to be paid for it. At this 
 point, therefore, it seems desirable that we should take a 
 general view of (1) the restraints which it is needful to 
 place on private individuals, in order to protect Government 
 against attack, and to render its discharge of its functions 
 more efficient, 2 and (2) the manner in which the personal 
 
 1 See Godwin's Political Justice, Book V. chap. xxiv. 
 
 2 The restraints to be placed on Government to secure the protection of 
 private individuals against governmental oppression or extortion will be more 
 conveniently considered in the second part of the treatise. 
 
 169
 
 170 ELEMENTS OF POLITICS CHAP. 
 
 services and the material commodities required for govern- 
 mental work should be obtained. 
 
 Under the first head we may begin by assuming that 
 the life, health, reputation, etc., of persons exercising govern- 
 mental functions will receive protection similar to that 
 afforded to private individuals by such a system of law as 
 has been sketched out in the preceding chapters: and we 
 may make a similar assumption with regard to the land or 
 other wealth which Government manages as " public pro- 
 perty," either as being necessary to the performance of 
 governmental functions, or most generally useful when 
 held in public ownership. These points need no argument : 
 and it is also obvious that any overt resistance to govern- 
 mental officials in the discharge of their legitimate functions 
 should be effectively repressed : though, of course, when 
 such an official has exceeded his lawful functions in apply- 
 ing coercion to any private individual, reparation should 
 be made to the latter for any injury he may have suffered 
 from the unlawful aggression, and punishment should be 
 inflicted on the aggressor if his excess has been wilful or 
 grave. It is more doubtful how far a private person is to 
 be held justified in resisting what he believes to be unlaw- 
 ful aggression on the part of a governmental official, just 
 as he would resist similar aggression on the part of a 
 private individual. It seems most simple and logical to lay 
 down that an official acting illegally loses all advantage of 
 his official character, so far as this action is concerned : still 
 there are important grounds for limiting the right of self- 
 defence more narrowly where the apparent aggressor is an 
 officer of government. For a conflict of force between a 
 private person and a governmental officer is more disturbing 
 and dangerous to social order than a similar conflict between 
 private persons ; again, in the former case there is a general 
 presumption that the apparent aggressor is better acquainted 
 with the limits of his legitimate functions than the private 
 individual whose right he apparently invades : finally, re- 
 paration is somewhat more secure l in the case of aggres- 
 
 1 I assume, of course, a state of society in which the relations of govern-
 
 XI THE MAINTENANCE OF GOVERNMENT 171 
 
 sion by a governmental officer than it is in the case of 
 private aggression, since the private aggressor may escape. 
 On the whole, then, it would seem expedient that the legal 
 right of self-defence against aggressions of governmental 
 officials should, as far as possible, be limited to cases in 
 which the illegitimacy of the official's attack is manifest and 
 unmistakable, or the injury threatened irreparable. 
 
 I have been speaking above of strictly legal rights of 
 resistance, as conceivably exercised against subordinate 
 officials. The consideration of the moral 1 right of private 
 persons to resist oppressive action on the part of a supreme 
 organ of government will come more properly at a later 
 stage of the discussion ; for which I also reserve the 
 important question how far special restraints should be 
 imposed on freedom of speech and freedom of association of 
 private individuals in order more completely to guard against 
 the danger of seditious resistance to the supreme govern- 
 ment. 2 
 
 Leaving the question of open resistance and incitement 
 to resistance, it may be laid down further that any attempt 
 to prevent or pervert the exercise of any governmental 
 powers by bribing or in any way threatening the officials 
 concerned should be severely repressed ; and, generally, any 
 dangerous attempt to throw obstacles directly or indirectly 
 in the way of the discharge of governmental functions 
 should be prohibited under penalties, unless for special 
 reasons it should appear that such penal interference would 
 be likely to be attended with evils outweighing its ad- 
 vantages. The most difficult question under this latter 
 head relates to the assistance that relatives and friends are 
 prompted to render to criminals desirous of escaping justice. 
 Such assistance should certainly be viewed generally as a 
 
 ment and governed are so far well ordered that the supreme government may 
 be trusted to repair wrongs committed by its subordinates. The constitutional 
 means for securing this result will be considered in the latter part of this 
 treatise. 
 
 1 As we saw (Chap. II.), there can hardly be a strictly legal right of 
 resisting a supreme legislative organ of government. 
 
 2 See Chaps. XXVII. 6, XXVIII. 2, and XXX. 8.
 
 172 ELEMENTS OF POLITICS CHAP. 
 
 breach of social duty ; but to punish it with unrelenting 
 rigour would bring the law into harsh and somewhat 
 demoralising collision with the affectionate feelings and 
 habits of mutual service which powerfully move men to aid 
 near kinsmen or intimate friends in distress. On the whole, 
 it is probably best to reserve the punishment of " accessories 
 after the fact " for the gravest class of crimes, and even in 
 this case to exempt from punishment the mutual secret aid 
 of husbands and wives, or children and parents. 
 
 2. Let us now proceed to a general survey of the means 
 by which the personal services and material commodities 
 required by government are to be provided. It must be 
 admitted that, in some respects, this survey would come 
 more appropriately after we have discussed the external 
 relations of political communities, and the important govern- 
 mental functions connected with them ; since, in most 
 modern states, the larger share of the cost of government is 
 caused by these functions. On the other hand, however 
 largely the expenditure of government may be due to its 
 external relations, the burden of providing the required 
 supplies must fall almost entirely within the community : 
 foreign tributes, whether exacted politically or under ex- 
 ceptional circumstances obtained by taxing foreign trade, 
 can rarely amount to more than a small fraction of such 
 supplies. 1 I propose, accordingly, to introduce the discussion 
 of the resources of government here ; though in so doing I 
 must take a more extended view of governmental work than 
 that which has so far been brought before us. 
 
 The commodities required by government may be 
 divided into (1) Personal services, (2) Material products of 
 labour, and (3) Natural resources, especially land and its 
 contents. Of these the third class may have belonged to 
 the community from the first, and never have been permitted 
 to be appropriated by individuals : it is only with regard to 
 the first two classes that the questions necessarily arise 
 
 J I do not of course mean that large revenues may not be raised by taxes 
 on imports : but that it is only under exceptional circumstances that 
 foreigners can be made to bear the burden of such taxes.
 
 xi THE MAINTENANCE OF GOVERNMENT 173 
 
 whether they are to be obtained (a) voluntarily or com- 
 pulsorily, (6) gratuitously or by purchase. For the higher 
 parts of the work of government, if they do not involve 
 continuous and fatiguing labour, the required services are 
 likely to be obtainable without either compulsion or 
 pecuniary emolument ; as the dignity and power attached 
 to such work renders it sufficiently attractive to a sufficiently 
 large class. Whether this arrangement is desirable depends 
 chiefly on the further question whether it is expedient that 
 the work should be wholly or mainly in the hands of persons 
 of comparative wealth and leisure : a question of which 
 the consideration belongs rather to the second part of this 
 work which treats of the structure of government. And 
 similar considerations are important in the more numerous 
 cases in which either compulsion or payment is necessary to 
 obtain the required services. Thus one of the reasons 
 commonly alleged for making service on juries compulsory 
 in England, is that the particular judicial functions allotted 
 to the jury would be less satisfactorily performed if they 
 were allowed to fall into the hands of a limited and quasi- 
 professional class of persons. 
 
 So again, it is urged in favour of compulsory military 
 service, that it diminishes the constitutional dangers involved 
 in the existence of a large standing army, since conscripts 
 are less likely than professional soldiers to be seduced into 
 subserving the ends of unconstitutional ambition. Still I 
 conceive that where compulsory military service is rightly 
 introduced, the decisive reason in its favour is the economic 
 reason, that the army required is too large to be raised 
 by voluntary enlistment except at a rate of payment which 
 would involve a greater burden in the way of taxation 
 than the burden of compulsory service. For where the 
 number of soldiers and sailors required for warlike pur- 
 poses is not large in proportion to the population, and can 
 be obtained for moderate remuneration, voluntary enlist- 
 ment has great advantages from a utilitarian point of view ; 
 since it tends to select the persons most likely to be efficient 
 soldiers and those to whom military functions are least
 
 174 ELEMENTS OF POLITICS CHAP. 
 
 distasteful ; both which advantages are lost by the adoption 
 of the compulsory system. Accordingly, no one would pro- 
 pose to apply this system to the police or civil service in 
 any modern State. 
 
 At the same time, where there is no regular compulsion 
 to military service, the duty of aiding personally, if required, 
 in the defence of the community against foreign enemies, 
 ought to be recognised as incumbent upon citizens gener- 
 ally : since no one can say how much of the available 
 physical force of the community may be imperatively 
 needed in a crisis of war, and it is desirable that whatever 
 demands may be made upon it should be cheerfully and 
 promptly met. Similarly, the aid of private persons not 
 in governmental employment may be on exceptional 
 occasions needed for the maintenance of order, and for the 
 prevention, detection, and punishment of crime : accordingly, 
 a general obligation to render such services, when required 
 to do so by lawful authority, should be legally established : 
 though the general economic advantages of " division of 
 labour " render it expedient that these functions should be 
 (as far as possible) left in the more expert hands of a 
 carefully organised and disciplined body of governmental 
 employees. 
 
 Even where military service is compulsory, the support 
 and equipment of all, except a comparatively small minority 
 of well-to-do persons, must be defrayed from the funds of 
 the community : and it is obvious that whatever services the 
 public obtains voluntarily must receive adequate remunera- 
 tion from the same funds except in the case of the 
 dignified and comparatively unfatiguing posts before men- 
 tioned, or where the services are only occasional, and demand 
 but a small expenditure of time. 
 
 Similarly, the cost of the material products of human 
 labour required for governmental use, whether purchased or 
 manufactured in governmental establishments, 1 must be 
 
 1 Generally speaking, it is best that Government should obtain by pur- 
 chase the material products of labour that it requires, owing to the general 
 superiority of private industry, under the condition of open competition.
 
 XI THE MAINTENANCE OF GOVERNMENT 175 
 
 borne by the public treasury : and where they are pur- 
 chased it is generally expedient that they should be obtained 
 by free exchange at their market- value : as any compulsory 
 reduction of the price paid for them would either discourage 
 their production or would be an inconvenient way of 
 indirectly taxing the consumers of similar products. 
 
 The case is otherwise when the commodity required is 
 not due to human industry : i.e. land or some part of the 
 contents of land, in an unlaboured condition. Here, 
 however, the practical question often is, not how the 
 Government is to be supplied with such commodities, but 
 rather how far it is desirable that it should retain possession 
 of them. For, as we saw, in newly occupied territory, all 
 the land with its contents is rightly treated as originally 
 the property of the community : and actually much of the 
 land that now belongs to the public, in modern European 
 communities, has never been strictly private property ; while 
 other portions have been the private or semi-private property 
 of royal families, and have thus gradually acquired the 
 character of public property, as the monarchy changed from 
 a feudal or semi-feudal to a modern institution. No doubt 
 where there are valid reasons for retaining such land in 
 public ownership whether because it is required for the 
 due performance of governmental functions, or because it is 
 likely to be more useful under governmental management 
 there would also be strong reasons for (acquiring it, if 
 it were in private hands : only where it is already public 
 property, the question whether it is to be obtained corn- 
 pulsorily or by voluntary exchange does not arise. Where, 
 however, this question does arise, I hold it expedient in the 
 special case of land that the community should have the 
 right of compulsory purchase ; because there is nothing to 
 be gained here as there is in the case before discussed of 
 
 But in the case of costly articles of which Government is the only consumer 
 such as cannons and ironclads the advantages of competition may be 
 difficult to obtain : and there may be special preponderating reasons in 
 favour of governmental manufacture, as when the quality of the article is 
 very important and at the same time difficult to test if obtained by purchase, 
 or where systematic and costly experiments in production are required.
 
 1 76 ELEMENTS OF POLITICS CHAP. 
 
 the products of labour by allowing the owner of land to 
 profit by the special need of the community. 1 
 
 3. The peculiar relation of the community to land, as 
 contrasted with other species of wealth, appears again when 
 we consider the sources from which the funds required for 
 governmental purchases are to be obtained. For one such 
 source, historically of much importance, is the rent of the 
 land. So far as this rent is a price paid for utilities that 
 are not due to human labour, or are an indirect result of 
 labour spent for other objects, and incapable of being appro- 
 priated by the persons whose labour has caused them, 2 
 the appropriation of such rent by government on behalf of 
 the community is theoretically quite in harmony with in- 
 dividualistic principles : but the difficulty of securing for 
 public uses this " unearned " rent without at the same time 
 confiscating the earnings of human labour and enterprise is 
 very great, and perhaps insuperable. And in any case, 
 where land has become private property, the financial opera- 
 tion required to transfer its unearned value to public owner- 
 ship, with due compensation 3 for existing rights, could not 
 be safely undertaken, unless the time at which the com- 
 munity would enter upon the enjoyment of its ownership 
 were postponed to a distant date : so that for this reason 
 alone apart from the difficulty before noticed the plan of 
 defraying any considerable part of governmental expenditure 
 from the rent of land is not within the range of practical 
 politics for modern States generally. 
 
 We may therefore assume that by far the greater part 
 of the funds required by Government must be raised, in the 
 long run, by the contributions levied from private persons 
 which we may broadly call taxes. But large supplies may 
 be obtained temporarily, by Government as by individuals, 
 through loans : and, in fact, a considerable part of the taxes 
 
 1 This question will be more discussed in the next chapter. 
 
 2 As, for instance, when the successful introduction of a new manufacture 
 into a district causes an increase of population, and a consequent rise in the 
 value of neighbouring land generally. 
 
 3 I have already said that the proposal to take it without compensation 
 does not seem to me to deserve discussion.
 
 XI THE MAINTENANCE OF GOVERNMENT 177 
 
 now levied in most of the leading European States is re- 
 quired to pay interest on such loans. Speaking broadly, 
 such borrowing is legitimate for governments under conditions 
 similar to those under which it would be prudent for private 
 persons: either (1) when the loan is employed productively, 
 so that interest may be paid and a certain portion of the 
 principal annually repaid out of the profit made by the use 
 of it ; or (2) where it is employed to meet an occasional 
 necessity for enlarged consumption, which could not be met 
 without painful sacrifices out of the income of a single year. 
 Productive outlay, again, may be either financially profitable, 
 when the loan is employed in some business carried on by 
 Government, of which the profits go directly to the treasury ; 
 or it may be only profitable socially by increasing private 
 incomes : in the latter case it has to be considered whether 
 the extra taxes which it will necessitate will not involve 
 disadvantages outweighing the gain. At any rate the in- 
 creased receipts accruing to the community in consequence 
 of such outlay ought obviously to be at the very least suffi- 
 cient to repay the loan with interest by the close of the 
 period required to exhaust the productive effects of the outlay. 
 A similar general principle is, I think, theoretically incon- 
 trovertible in the practically more important case of 
 unproductive borrowing to meet an occasional need of extra 
 expenditure : the number of years over which the sacrifice 
 imposed by the emergency may safely be extended ought to 
 be limited by the condition of paying off the loan before a 
 similar emergency may be expected to occur again. But in 
 practice the application of this principle is very difficult : 
 since the chief emergencies which necessitate such loans are 
 foreign wars, arid we have at present no means of forecasting 
 scientifically the magnitude and frequency of a nation's 
 future wars. In these circumstances, it seems most prudent 
 to infer the probability of future wars from past especially 
 recent experience : and if so, the principle above laid down 
 is certainly too much neglected by the nations of modern 
 Europe : a neglect which can only be partly excused by 
 the probability that the future increase of national wealth 
 
 N
 
 i;8 ELEMENTS OF POLITICS CHAP. 
 
 and the tendency in the rate of interest to fall will reduce 
 the burden of any national debt already contracted. 
 
 To discuss more in detail the effects of loans, or the 
 right mode of raising them, would be inappropriate in such 
 a work as this. And it also seems to me best, in passing 
 to consider the central question of this chapter the ques- 
 tion of taxation to omit such topics as seem appropriate 
 rather to treatises on political economy or on technical 
 finance. Accordingly, I shall not discuss the applications 
 of the elementary maxims that " every tax ought to be 
 levied at the time or in the manner in which it is most 
 likely to be convenient for the contributor to pay it," and 
 that every tax ought to be so contrived as to inflict as little 
 extra sacrifice as possible on the contributor, over and 
 above the sacrifice of the money that it brings into the 
 public treasury. 1 I will only observe that in carrying out 
 the latter maxim we have to consider not only the expense 
 to Government of collecting taxes, and the trouble and 
 annoyance entailed by the process of collection, but also the 
 economic loss to the community that may be caused by the 
 effect of the tax in modifying the processes of industry and 
 trade : indeed, it is to this latter kind of loss that special 
 attention should be directed by theoretical writers, as it is 
 more liable to be overlooked. But it belongs rather to the 
 political economist to develop the importance of this con- 
 sideration, and to apply it to particular cases : in a treatise 
 on General Politics what most concerns us is to seek for a 
 clear view of the equitable principles on which the burden 
 of taxation should be distributed. 
 
 4. "We may conveniently begin by trying to define a 
 " tax." The widest notion attached to the word would 
 seem to be " a compulsory payment to Government that is 
 not penal " : only it must be observed that what we agree 
 to call " taxes " on consumable commodities are for the most 
 
 1 These are, substantially, the third and fourth of Adam Smith's famous 
 maxims : but the statement of the fourth has been modified in order that its 
 scope may more legitimately include the " trouble, vexation, and oppression " 
 which Adam Smith does actually make it include.
 
 xi THE MAINTENANCE OF GOVERNMENT 179 
 
 part not absolutely compulsory, as any individual may escape 
 them by abstaining from the consumption of the com- 
 modities. On the other hand, we certainly do not include 
 under the term " tax " all payments made by those who 
 purchase any commodity of which the sale is controlled by 
 Government : for we do not ordinarily consider ourselves 
 taxed by the charge for postage-stamps except so far as it 
 exceeds the market-price of the service of conveyance for 
 which the charge is made ; though it is neither more nor 
 less compulsory than the charge for a receipt-stamp, which 
 is undoubtedly a tax. In short, a payment for a govern- 
 mental service not priced above its market-value is not 
 commonly reckoned a tax, if rendered to the payer by his 
 own choice, even though Government has a monopoly of 
 such services. And it is, I think, doubtful whether even a 
 compulsory payment of this kind, for a specific service 
 definitely appropriated to the payer for instance, a com- 
 pulsory rate for water supplied by the Government, not 
 exceeding the market-value of the supply, would ordinarily 
 be called a " tax." I think usage here becomes uncertain. 
 But, in any case, whatever term we might use, I think that 
 we should be broadly agreed as to the equitable principle 
 for apportioning such payments for specific services capable 
 of being definitely appropriated to the payers : it would be 
 held that the payment ought to be proportioned to the 
 amount of the service l rendered, as closely as is consistent 
 with the most economic management of the business of 
 rendering such services. 
 
 These considerations lead us to one interpretation of 
 the accepted principle of " equality of taxation." It is 
 obvious that the " equality " here spoken of is a proportional 
 equality of some kind : it is not meant that every one 
 should pay the same sum ; and since, in a well-governed 
 community, all taxes are payments for services rendered by 
 
 1 There would be less agreement as to whether ' ' amount of service " is to 
 be measured by cost or utility : and the difference between the two measure- 
 ments still leaves a considerable margin of possible variation. See my 
 Political Economy, Book III. chap. viii. 4.
 
 l8o ELEMENTS OF POLITICS CHAP. 
 
 Government to the governed, it seems in accordance with 
 equity that the distribution of the payments should corre- 
 spond as nearly as possible to the distribution of the 
 services. And I think that this principle should certainly 
 be adopted, so far as there is a substantial and definitely 
 ascertainable inequality in the benefits conferred by the 
 action of Government on different sections of the com- 
 munity : for instance, it should be applied in defraying the 
 cost of roadmaking and other improvements, and generally, 
 in determining the division between general and local taxa- 
 tion. But I regard it as only applicable to a very slight 
 extent, in the case of the most important, and actually most 
 costly, functions of government : because the utilities pro- 
 vided by these functions cannot be apportioned, with even 
 approximate exactness, among the individual members of the 
 community. And this is, I think, implicitly recognised in 
 the common use of the term " tax " : since it is just in the 
 cases where the individual's payment to Government fails to 
 correspond to an individualised governmental service, that 
 the applicability of the term is most clear and unmistakable. 
 Take, as a leading example, the case of defence against 
 foreign foes: considering the general mildness as regards 
 individuals of modern civilised warfare, it cannot be main- 
 tained that the main object of warlike expenditure is the 
 direct protection of the life and property of individuals : 
 and though it is undeniable that different classes in the 
 community are personally interested in very different degrees 
 in the maintenance of national existence, or national honour, 
 or prestige or power or in the defence of particular 
 territories or treaty-rights, it would be idle to attempt 
 to frame an estimate of these different degrees of in- 
 terest which could be taken as a basis of distribution of 
 taxation. 
 
 So, again, it is no doubt true that (e.g.} judges and 
 policemen are continually engaged in rendering specific 
 services to certain individuals : but since as Bentham and 
 Mill urge " those who are under the necessity of going to 
 law are those who benefit least, not most, by the law and
 
 xi THE MAINTENANCE OF GOVERNMENT 181 
 
 its administration," it would be manifestly unjust that the 
 cost of the judicature and the police should fall exclusively 
 on the persons who are compelled to demand their direct 
 assistance. And it seems impossible to apportion with any 
 exactness the benefits of " law and order " among the rest 
 of the community, who are indirectly protected by judges 
 and policemen. At the same time, I think that the 
 principle of proportioning payment to services rendered 
 may reasonably be applied, to some extent, in defraying the 
 general cost of protecting property : as (e.g.} by making 
 the payment of stamp duties on instruments and records of 
 transfer a necessary condition of the admission of such 
 documents as evidence in courts of justice. But stamp 
 duties are a very rough mode of proportioning payment 
 exacted to protection given : and at any rate as regards the 
 greater part of the taxation of a community, we have to 
 seek for some other principle. 
 
 5. The most obvious principle of equitable distribution 
 of taxation assuming that apportionment in the ratio of 
 service rendered is excluded seems to be that of simply 
 equalising, as far as possible, the burden or sacrifice that 
 taxation imposes on individuals. Adam Smith's maxim 
 that taxation should be proportioned to income or revenue 
 is perhaps designed to realise this principle : but reflection 
 will show that the realisation can only be very imperfect ; 
 since the needs of different classes of contributors with equal 
 incomes are very different, and the sacrifices imposed by con- 
 tributions proportioned to income tend to differ accordingly. 
 In the first place, needful expenditure on the instruments of 
 a man's handicraft, trade, or profession, should obviously be 
 subtracted from his income before it is estimated for the 
 purposes of proportionally equal taxation: on the other hand, 
 the line between this and expenditure for enjoyment is often 
 obscure, especially in the case of professions the library of 
 a teacher or writer, the carriage of a physician, the travels 
 of an artist, are partly sources of professional earnings, but 
 partly also of enjoyment. More important still and more 
 obvious is the greater burden imposed on fathers of families
 
 i8z ELEMENTS OF POLITICS CHAP. 
 
 as compared with bachelors by the same tax : and here we 
 may also notice the greater proportional burden incomes 
 being the same of the worker who has to save for children, 
 or his own old age, as compared with the owner of capital. 
 Most important of all is the severer burden that taxation 
 proportioned to income throws on the poorer classes, so far 
 as it tends to reduce their expenditure below the standard 
 required for health or efficiency. Indeed, if equalisation of 
 burden were the sole consideration, the equity of a graduated 
 ratio of taxation, rapidly increasing as incomes rise, could 
 hardly be denied : the serious objection to such a measure 
 lies in the danger of economic loss to the whole community 
 caused by checking accumulation or driving capital from the 
 country. There is no similar danger in what has been called 
 a " degressive " as distinct from a " progressive " taxation : 
 that is, taxation graduated at the lower but not the upper 
 end of the scale of incomes, so as to be roughly proportioned 
 not to total income, but to income minus necessary expendi- 
 ture. And there is a strong argument for adopting this 
 degressive graduation, in a community where indigence is 
 relieved from public funds. For if Government risks some 
 of the evils of communism in order to secure the poorest 
 citizens from want of the necessaries of life, consistency 
 requires that it should not endeavour to take by taxation 
 from the poor who remain independent a part of what it 
 would have to give them if they sought its aid : and if, on 
 this ground, we exempt from taxation incomes below a 
 certain minimum, it would be unreasonable to tax those 
 just above this minimum in proportion to income, since 
 persons who could only earn a little more than the mini- 
 mum would thus be liable to lose the whole of what they 
 earned. 
 
 These considerations would lead us to treat as taxable 
 only that portion of any individual's income that is not 
 required to provide necessaries either for the personal con- 
 sumption of himself and those dependent on him, or for the 
 efficient performance of his work. But, owing both to 
 the difficulty of denning necessaries and the complicated
 
 XI THE MAINTENANCE OF GOVERNMENT 183 
 
 differences in the needs of different persons, 1 it would be 
 practically impossible to carry out this principle with even 
 approximate accuracy by any method of direct taxation. 2 
 Probably the best method of realising it is by taxing small 
 incomes only indirectly, through taxes on consumable articles 
 that are not necessaries ; a method which has the ad- 
 vantage of enabling those persons whose needs are greatest 
 to lighten their own burden by abstinence not dangerous to 
 health ; though it must be admitted that it is also liable 
 to entail serious inequalities, from the variations in taste, 
 constitution, and habits of different consumers. Still 
 this objection is less important, as we must in any case 
 be content with a very rough approximation to equality 
 of burden. 
 
 In taxing commodities, it is generally expedient to select 
 articles of which the consumption is not likely to be restricted 
 to any great extent by the tax ; since all such restrictions 
 tend to cause loss of utility to the public over and above 
 the gain to the treasury. But some restriction is inevitable : 
 hence the special advantage of taxing commodities like 
 alcoholic liquors and tobacco, which tend to be largely con - 
 sumed in excess of what is salutary. It is to be observed, 
 however, that the normal expenditure on such commodities 
 usually absorbs an increasing proportion of the consumer's 
 income as we descend in the scale of wealth : to balance this, 
 
 1 It would be seriously misleading to estimate the expenditure of the 
 poorest class on the necessaries of life, and take this as a standard above 
 which expenditure in any class was to be regarded as non-necessary ; since a 
 larger part of the expenditure of the higher income-classes is expenditure 
 which could not be pretermitted without economic detriment to society. 
 For in the case of all skilled labour, from the highest to the lowest, pro- 
 vision has to be made for the more or less prolonged education of the future 
 labourers, and for their prolonged support while being educated : and the 
 minimum of economically necessary consumption must be proportionately 
 increased. Further, after education has been finished, a material part of 
 the expenditure of the higher classes of workers, besides what is required 
 for their physical support e.g. on books, instruments, conveyances, etc. 
 is also either economically necessary or at least highly conducive to economic 
 efficiency. 
 
 2 There are also technical objections to an income-tax extending to small 
 incomes, owing to the comparative costliness of the process of levying it.
 
 1 84 ELEMENTS OF POLITICS CHAP. 
 
 therefore, we shall require further taxation of the middle 
 and upper classes either directly, by an income-tax in the 
 narrower sense, or by taxation of the special luxuries of 
 such classes. On the other hand, under a system which 
 combines direct taxation with indirect taxation of luxuries 
 largely consumed in excess, we cannot simply estimate the 
 burdens imposed by taxation on different classes from the 
 amounts which they respectively pay to the treasury. For 
 firstly, direct taxation being inevitable, is a greater burden 
 than an equal amount of taxation voluntarily incurred by 
 purchasing commodities ; though the amount of the extra 
 burden cannot be definitely calculated. Secondly, we have 
 to allow for the extra contribution levied by indirect taxes 
 from those who consume in excess alcoholic liquors or 
 similar dangerous luxuries: for the moderate drinkers in 
 any class have obviously no claim to be regarded as over- 
 taxed because their class includes a minority of drunkards 
 who materially increase the total consumption of the class. 1 
 Under these conditions, exact justice is not attainable in 
 the distribution of the burden of taxation among different 
 income-classes ; and probably the best thing to aim at is an 
 approximate proportionment of the contributions of different 
 income-classes to their total incomes, all direct taxation 
 of the poor, and all taxation of necessaries, being carefully 
 excluded. 
 
 So far I have assumed that the burden of taxes whether 
 direct or indirect will be borne by the persons on whom 
 Government designs to impose it ; and, speaking broadly, I 
 think this will be the case with the system of taxation so 
 far suggested. I do not conceive that any considerable 
 part of this taxation has any important tendency to be 
 transferred from the persons on whom it is intended to be 
 imposed to other classes in the community, whether it takes 
 the form of an income-tax in the narrower sense, or that of 
 taxes on commodities ; so far as these latter are practically 
 
 1 To recognise the drunkards themselves as having such a claim would 
 be obviously inconsistent with the principle 011 which these dangerous 
 luxuries are selected for taxation.
 
 xi THE MAINTENANCE OF GOVERNMENT 185 
 
 paid by the consumer, which may be taken to be in the 
 main the case with taxes imposed for revenue only, when 
 they have been some time established. 1 A new tax on any 
 article of luxury is doubtless liable to fall to some extent 
 on those who supply the article ; which is a reason on the 
 ground of equity for avoiding frequent changes in this 
 department. 
 
 The clearest case of transfer of burden is that of a special 
 tax laid on land (or any other species of durable wealth). 
 It would be clearly contrary to equity to impose such a tax, 
 in a modern community except as payment for special 
 utilities furnished by Government to landowners, etc. ; but, 
 supposing such a tax to have been imposed some time ago, 
 then to whatever extent land has been sold since it was 
 imposed, the injustice would not be repaired by taking it off 
 now ; since, so far as the tax is taken into account by the 
 purchaser, it practically remains a burden on the original 
 owner even after the sale, and not on the purchaser. 2 
 Hence such a tax, when of old standing, should be regarded 
 as a portion of rent reserved by the community, and not 
 taken into account in distributing the burden of taxation. 
 
 It seems also right to treat taxes on inheritance as quite 
 sui generis ; since neither the economic nor the equitable 
 considerations that ought ordinarily to be decisive in dis- 
 tributing taxation are applicable to this case at least in 
 the ordinary manner and degree. In the first place, Govern- 
 ment, by taking a portion of what would otherwise have 
 come to a man by inheritance, in no way diminishes the 
 motives that prompt him to produce and accumulate wealth 
 
 1 A certain share of the burden of such taxes will be borne by the owners 
 of land or other natural agents employed in the production of the com- 
 modities taxed : and this should receive consideration in any fresh taxation 
 of the kind. But this share will not generally be large or definitely ascertain- 
 able in the case of taxes of old standing imposed for revenue only : and it 
 need the less be taken into account in the case of such taxes for the reason 
 given in the next paragraph. 
 
 2 I do not take account of transfers by inheritance ; since, where children 
 have inherited, it may reasonably be supposed that they would have got 
 more if there had been no tax : so that they may fairly be regarded as still 
 paying it.
 
 1 86 ELEMENTS OF POLITICS CHAP, xi 
 
 if anything, it tends to increase these motives ; nor does 
 it necessarily cause even any disappointment of expectations, 
 except when the tax is first imposed. A heavy tax on in- 
 heritances may indeed diminish the inducements of pro- 
 spective testators to industry and thrift : but its bad effect 
 in this way is not likely to be considerable, so long as such 
 taxation is kept within the limits which the danger of 
 evasion by gifts from the living to the living practically im- 
 poses on the financier : and this latter danger will generally 
 be much less where there are no children or other direct 
 descendants to inherit. Hence it seems expedient, in the 
 case of these taxes, to give up the ordinary aim at equality 
 of incidence, so far as to tax more heavily wealth inherited 
 by others than direct descendants. But if so, we can hardly 
 include these taxes in our general distribution of the burden 
 of taxation on the equitable principles above laid down : 
 and, on the whole, it seems best to treat them as a special 
 burden on the propertied classes inheritances below a cer- 
 tain value being exempted. Such an arrangement has the 
 advantage of conceding something to the equitable claim 
 for a graduated income-tax, without incurring any serious 
 danger of checking accumulation.
 
 CHAPTEE XII 
 
 GOVERNMENTAL ENCROACHMENTS AND COMPENSATION 
 
 1. WE have now completed the survey, commenced in 
 Chap. III., of the internal operations of government, and 
 the principles on which these operations ought to be 
 conducted. We first adopted the assumption, generally 
 accepted in modern political thought, and realised in 
 modern systems of law, that what the adult members of 
 any State require from their Government is mainly security 
 from mischief and interference caused by other men, includ- 
 ing breach of engagements freely contracted ; security given 
 primarily by maintaining laws that prohibit all such mis- 
 chief or interference, and inflicting punishment or exacting 
 damages for their violation. We then examined the different 
 general considerations which appear to justify various kinds 
 and degrees of further governmental interference with in- 
 dustry, and with the action of private individuals generally ; 
 sometimes to carry out more effectively the principle of 
 protecting individuals from mischief caused by others ; 
 sometimes, though rarely, in the interest of the individuals 
 interfered with ; sometimes, again, to secure for the com- 
 munity either by regulating or by undertaking industrial 
 operations certain utilities which private competition does 
 not tend to provide satisfactorily ; sometimes to enable the 
 poorer members of the community to apply their labour 
 more productively, thus compensating for the encroachment 
 on equality of opportunity which the appropriation of 
 natural agents necessarily involves ; sometimes, finally, to 
 
 187
 
 1 88 ELEMENTS OF POLITICS CHAP. 
 
 save those defeated in the struggle for existence from the 
 worst consequences of their defeat. The need of some kind 
 of interference under all these heads is generally recognised 
 in the practice of modern communities ; but our discussion 
 will have made it evident that very wide divergences are 
 possible as to the proper limits of such interference, even in 
 well-ordered communities of civilised men, of which the 
 governments are aiming in an intelligent and reasonable 
 manner at the wellbeing of the community. 
 
 These divergences are most manifest in the classes of 
 governmental interference distinguished as " indirectly in- 
 dividualistic," " paternal," and " socialistic " ; but they would 
 still exist even if the operations of government were strictly 
 confined to the " individualistic minimum." Thus, in trying 
 to define the content of the right of property, from the point 
 of view of the strictest individualism, we have had to re- 
 cognise a considerable margin of doubt, for instance, in 
 the important cases of property in land, and property in 
 the results of intellectual labour; and we have noted a 
 similar doubtful margin, in considering the limits of con- 
 tractual obligation. In the same way many doubtful points 
 of importance occur as the last chapter has shown in 
 determining the distribution of the burden of providing 
 Government with the resources necessary for the performance 
 of its functions. Considering these actual doubts and dis- 
 agreements, and taking further into account the continual 
 alterations in human relations and circumstances which may 
 be expected to accompany the development of industry and 
 of civilisation generally, we must expect that important 
 changes will occur from time to time in the legislative 
 operations of Government, even in the most peaceful and 
 well-ordered communities ; and that such changes may 
 materially affect the interests of individuals and frustrate 
 expectations founded on the existing law. Further, even 
 apart from any such general changes, the most effective 
 attainment of the ends of Government in some particular 
 case may require or appear to require an encroachment 
 on the rights normally secured to individuals. But by
 
 XII GOVERNMENTAL COMPENSATION 189 
 
 such encroachments on the legitimate expectations of in- 
 dividuals, governments are obviously in danger of causing 
 pain of disappointment, and more widely diffused evils of 
 insecurity, similar to those that would be caused by the 
 private invasion of legal rights which it is the primary 
 concern of Government to prevent. Hence, if it be admitted 
 that such encroachments are inevitable, it becomes important 
 to consider how far their bad effects can be, and ought to 
 be, neutralised or reduced, by compensation to the in- 
 dividuals whom they tend to injure. 
 
 A systematic discussion of this question requires us to 
 distinguish carefully the chief ways in which Government is 
 liable to encroach on the interests of individuals. I shall 
 first consider cases of encroachment on private property 
 that may occur without any change in the general rules of 
 governmental interference ; as when a private owner is 
 compulsorily deprived of some particular portion of wealth, 
 on account of some special governmental need, or of its 
 special fitness for governmental purposes, without any 
 general change in the law relating to this kind of property. 
 I shall then proceed to discuss the effects of those changes 
 in the general 1 rules of governmental action which I have 
 chiefly had in view in ' the preceding paragraph. Here it 
 will be convenient to distinguish three cases : (1) changes 
 in laws (exclusive of rules of taxation), which affect detri- 
 mentally the legally secured interests of individuals ; (2) 
 changes in taxation, either to obtain an increase of supply, 
 or for more equitable distribution of the burden, or for 
 some economic or technical advantage ; (3) changes in some 
 action of government in relation to industry, other than 
 legal regulation or taxation. The chief example of this 
 third case is the undertaking by government of certain 
 branches of industry, whether to supply governmental needs 
 as (e.g.} the need of military equipment or apparatus or 
 to furnish certain commodities to the public generally, as 
 in the case of the Post-Office. 
 
 2. I begin with the case of particular encroachment, 
 as that in which the claim to full compensation is most
 
 190 ELEMENTS OF POLITICS CHAP. 
 
 undoubted. It would be obviously unjust that any single 
 individual should suffer loss, merely because the State 
 happens to want a piece of his land or other property ; 
 and the injury to general security that such injustice would 
 cause would far outweigh the pecuniary gain from it to the 
 community. 
 
 Indeed it is not clear, on strictly individualistic principles, 
 that any forcible interference ought to be allowed in such 
 cases as this. Why it may be said if an individual's 
 property is wanted by the community of which he is a 
 member, should not the price be determined by the " higgling 
 of the market " ? In the first place, a Naboth might 
 decline to give up his vineyard at any price : and then 
 if the general welfare be accepted as our ultimate end, an 
 urgent public need ought clearly to be regarded as a para- 
 mount claim, overriding an absolute refusal to sell. Such 
 a refusal, however, would be a rare case ; ordinarily, the 
 only danger would be that Naboth would try to make the 
 community pay as much as possible for his vineyard. The 
 practical question, therefore, in most cases is whether Govern- 
 ment should have the right to compel the sale of private 
 property at the price it would fetch, apart from the special 
 public need that occasions the compulsory purchase ; or 
 whether the owner should be allowed to charge an increased 
 price for his property corresponding to this new demand for 
 it, as he would in private bargaining. 
 
 Now, it would be clearly inexpedient to lay down the 
 general rule that private individuals are never to make 
 extra profit out of the needs of the community. For the 
 hope of such extra profit is the main stimulus to the com- 
 petition on which the progress of industry depends ; hence 
 the adoption of a rule prohibiting it would tend to paralyse 
 the normal action of competition in the businesses that 
 supply the needs of Government ; and the general result, in 
 the long run, would be that Government would be worse 
 served at higher charges. But, as we have seen, when a 
 business falls under the condition of monopoly, the good 
 effects of competition tend to be lost. And sudden serious
 
 xii GOVERNMENTAL COMPENSATION 191 
 
 emergencies such, for instance, as arise in war may give 
 the holders of particular commodities a temporary monopoly 
 so effective as to enable them, if unrestrained, to raise their 
 prices exorbitantly against the community, at a time when 
 the financial exigencies of Government are likely to be great. 
 Hence it may be expedient in such emergencies that Govern- 
 ment should have the power of compulsorily purchasing at 
 a fair price even the products of industry ; though such a 
 power should be jealously limited and rarely used, owing to 
 the danger above explained of paralysing competition. 
 
 Where, however, what Government needs is land, there is 
 no similar danger in compulsory purchase, since the special 
 convenience ;of particular portions of land for particular 
 public uses is ordinarily of a kind that cannot be materi- 
 ally increased by human labour or skill. Here, therefore, 
 there seems to be no economic objection to the adoption of 
 the principle that the individual should not be allowed to 
 make a profit out of the special need of the community ; the 
 general security of property seems to be sufficiently main- 
 tained, if every landowner who is expropriated receives from 
 Government in full what the value of his land would have 
 amounted to, apart from the special need that is the occasion 
 of the expropriation. And in applying this principle we 
 must of course treat the rights of temporary occupiers 
 similarly to those of owners, and include along with the land 
 any buildings or other " immovable " products of labour that 
 may be attached to the land. 
 
 But further, if the landowner is not to gain by the 
 special governmental need of his land, neither, on the other 
 hand, ought he to lose by it ; hence it will not always be 
 sufficient to give him as compensation the market price of his 
 property: as it may be worth materially more to him than 
 the price it would fetch in the market, either from its con- 
 nection with the rest of his property or from the nature of 
 the business in which it is employed. Thus, if a shopkeeper 
 is expropriated, compensation is due to him for the "goodwill" 
 or business connection which he would lose by removal to 
 another place. There is, however, a difficulty in applying
 
 192 ELEMENTS OF POLITICS CHAP. 
 
 this principle : for if, for purposes of compensation, we 
 estimate the whole value of a thing to its expropriated 
 owner, we shall in some cases have to include the purely 
 subjective element of value called " pretium affectionis "- 
 the value derived from attachment and association or peculiar 
 taste ; on the other hand, if we include this element, it is 
 difficult to put a limit to the claim for compensation. I 
 conceive that this difficulty can only be dealt with in a rough 
 way, by applying an average outside standard : that is, 
 some compensation should be given for the special subjective 
 value of a thing to its expropriated owner, when it is of a 
 kind likely to have this special value in the case of an 
 average man, and to the extent that would be adequate in 
 such an ordinary case. 1 
 
 Hitherto I have spoken of purchase by government ; but 
 the same principles of valuation should obviously be applied 
 in the case of a private company formed to supply a public 
 need, and obtaining on the ground of this public service 
 the right of taking land at a fair price. 
 
 Other questions arise in settling the details of any such 
 compulsory purchase of land, of which the most important is 
 this : Should the expropriator have the right to take more 
 than is needed for his public object, supposing this additional 
 portion has more value for the expropriator than it had 
 apart from the public need for the expropriated owner ? 
 It seems clear that, if it is for the public interest that the 
 expropriation should take place at all, it should be as 
 economical as possible consistently with justice to the 
 expropriated : hence, if the expropriator is limited to what 
 is strictly necessary for his public object, at least any certain 
 and undoubted increment of value added by his work to 
 neighbouring land may be fairly claimed as a set-off against 
 the compensation that has to be paid for what is taken. 
 
 1 It is to be observed that any such allowance of compensation in excess 
 of selling value requires to be very carefully watched, as, owing to the diffi- 
 culty of exactly estimating it, it involves a special danger that the public 
 may be despoiled by private owners conspiring with officials to sell land (or 
 other things) at an excessive price and share the plunder.
 
 XII GOVERNMENTAL COMPENSATION 193 
 
 A common example of this is the case of land taken for a 
 road near a town ; since the strips on either side of the 
 road tend to be materially increased in their value for 
 building purposes by the change. 
 
 So far I have confined my attention to rights of property. 
 But an analogous and equally valid claim to compensation 
 arises in other cases in which an individual's legally secured 
 expectations, having a definite value, are sacrificed to public 
 convenience by the act of government. Thus, if a post in 
 governmental service, which is definitely understood to be 
 held on the tenure of " good behaviour," is abolished on the 
 ground of economy, the holder has a right to be compen- 
 sated to the full amount of his salary ; provided that he on 
 his part is ready to give his services to government to the 
 extent to which he would have been bound to do so in the 
 post abolished. On the other hand, if he is definitely under- 
 stood to hold his post during pleasure, he has no claim to 
 compensation. 
 
 3. I now pass to the more difficult question of changes 
 in general rules of law, which affect detrimentally the 
 interests of individuals. 
 
 And first, let us consider changes in respect to property : 
 as being most cognate to the interferences just discussed. 
 Suppose that instead of a particular thing in private owner- 
 ship being compulsorily taken for a purpose of public utility, 
 we have an abrogation or a new determination of the right 
 of property, in respect of a certain class of things, which 
 destroys or diminishes their utility to their previous owners, 
 with a view to an advance in social wellbeing. There are 
 many historical instances in which legal rights having a 
 definite market value have been completely abrogated in 
 comparatively recent times, the most important being the 
 abolition of slavery in America and of serfdom in Russia, 
 and of manorial rights in other parts of Europe : and the 
 question of compensation has been of great practical import- 
 ance in all these instances. Approaching this question from 
 the one just discussed, we can hardly doubt that compensa- 
 tion should be given in this case also ; since the security 
 

 
 194 ELEMENTS OF POLITICS CHAP. 
 
 at which law aims is no less intensely, and of course far 
 more extensively violated, if the legally secured interests 
 of a particular class are sacrificed without compensation to 
 the interests of the community, than it would be if an 
 individual's interests were similarly invaded. 
 
 This reasoning clearly applies to the abrogation not only 
 of rights of property strictly so called, but of any rights 
 legally secured that have a definite pecuniary value ; such 
 as lucrative monopolies, secured to companies or individuals 
 either by express grant of Government, or by custom 
 recognised as having legal validity, and rights to appoint 
 or to be appointed to lucrative posts. There is more 
 doubt as to cases where the change consists merely in 
 some restriction on the free use or exchange of things, or 
 the exercise of any lucrative or marketable rights, that still 
 remain secured to their previous owners : as when certain 
 modes of treating animals are prohibited as cruel, or the use 
 of the whip by overseers of slave labour before the complete 
 abolition of slavery, or the payment of wages to workmen 
 in commodities furnished at employers' shops, or the sale of 
 advowsons except to certain persons. Any such restriction 
 is likely to cause some economic loss to the person restrained ; 
 but such loss will generally be difficult to trace and define : 
 and perhaps the members of a progressive community may 
 be supposed to look for minor changes of this kind, and 
 may within limits be fairly expected to take the bad with 
 the good ; as they are likely often to receive benefits from 
 new laws for which they are not made to pay. Still, it seems 
 clearly equitable that the compensation for governmental 
 encroachment on the legally secured interests of individuals 
 should extend to cases of restriction on the exercise of rights, 
 as well as to cases of complete abrogation ; so far as (1) the 
 rights in question were recognised as normally permanent, 
 and (2) any part of the loss inflicted by the change is 
 clearly and definitely ascertainable and considerable enough 
 to constitute a substantial grievance. And at first sight it 
 would seem that any such loss that is compensated at all 
 should be fully compensated.
 
 xii GOVERNMENTAL COMPENSATION 195 
 
 There are, however, in many cases important considera- 
 tions on the other side, tending to the reduction of the 
 amount of compensation. The abrogation of the class 
 of rights which we are considering is assumed to take 
 place because the existence of these rights is opposed to 
 public wellbeing. Now in such cases the degree of mis- 
 chief that results from the mode of exercising such rights 
 that is most profitable to their possessors may often be 
 very materially reduced if the possessors of the rights 
 will consent to forego a certain amount of profit. Thus, 
 the most crying evils of predial slavery arose from the 
 endeavour to make the utmost gain out of the slaves' 
 labour : and, similarly, the evils attending the venality of 
 ecclesiastical appointments are much reduced if the pur- 
 chasers of such appointments are restrained by a sense of 
 duty from appointing unfit friends or relatives though of 
 course this restraint may materially diminish the value of 
 the right purchased. 
 
 In any such case, as opinion becomes more and more 
 unfavourable to the general existence of the rights in 
 question, the moral condemnation of the persons who 
 exercise them without restraint will tend to grow. 
 
 Under these circumstances, there seems an obvious ad- 
 vantage in adopting the principle that compensation will 
 only correspond to what the pecuniary value of the rights 
 in question would be if they were exercised in the more 
 moral but less profitable way : for otherwise pecuniary 
 interest would prompt selfish owners of the right, during 
 the period in which public opinion is growing in the 
 direction of the change, to exercise their rights to the 
 utmost, in spite of the mischief, in order to establish a 
 claim to larger compensation. Any such conflict between 
 self-interest and current morality is clearly detrimental to 
 the wellbeing of the society. 
 
 Sometimes, however, no important line can be drawn 
 between a harmful and comparatively harmless use of the 
 rights in question : any use may be so decidedly mischievous 
 as to be altogether condemned by the growing body of
 
 195 ELEMENTS OF POLITICS CHAP. 
 
 opinion which will ultimately sweep away the institution. 
 In this case all the persons interfered with by the change 
 will be in the position of having made money by practices 
 which, though not strictly illegal, are yet condemned by a 
 widespread and ultimately prevalent moral opinion, as 
 opposed to the general welfare. The slave-trade was in 
 this position a century ago ; and up to a comparatively 
 recent date the keeping of public gaming-houses, in several 
 European States. 
 
 In such cases, when the moral condemnation is suffi- 
 ciently widespread, it supplies a strong reason for limiting 
 compensation to what is required to mitigate any severe 
 hardship that a sudden change in the law might sometimes 
 cause : since the resulting insecurity is even advantageous to 
 society, so far as it diminishes the inducement to lucrative 
 practices that are recognised as socially mischievous, though 
 not legally prohibited. It may be urged, however, that 
 there is a counterbalancing mischief in the more widespread 
 though less intense insecurity that would be generally felt 
 by persons engaged in industry, if any industrial class were 
 liable to suffer an uncompensated loss of their legal rights, 
 merely because a majority of their fellow-citizens had sud- 
 denly become convinced that these rights were opposed to the 
 public welfare. I admit some force in this argument ; but 
 I cannot think that the danger it signalises is very material, 
 in the case of such a change in moral opinion as I have 
 above supposed. Such a change, if we may judge the future 
 from the past, is likely to be of slow growth : so that any 
 class affected by it will have a long period of warning before 
 the moral change has its legal consequences. 1 
 
 The reason above given for not allowing full compensa- 
 tion for the gainful exercise of legal rights in a manner 
 opposed to the interests of society, when such rights are 
 
 1 In the present discussion I do not assume any particular structure of 
 Government ; but it may be observed that under a settled popular Govern- 
 ment the necessity of prolonged agitation to bring about a serious change in 
 established legal rights will generally involve a long date of notice to the 
 persons whose rights will be invaded by the change.
 
 xii GOVERNMENTAL COMPENSATION 197 
 
 altogether abrogated, applies still more strongly where such 
 rights are only restricted, so as to cut off the mischievous 
 part of their exercise, without interfering with the part that 
 is socially advantageous. In this latter case, if the line 
 between mischievous and salutary use can be drawn with 
 clearness, I conceive that there will be no occasion for 
 compensation, except when a sudden change would inflict 
 great hardship on individuals. 
 
 4. Let us now pass to consider changes in taxation. 
 Here the fundamental question is whether the design of the 
 change is to get rid of the technical defects or indirect 
 economic disadvantages of certain established taxes, or to 
 alter the distribution of the burden of taxation in order to 
 make it more equitable. In the former case equity requires 
 the legislator to aim at compensating for any extra burden 
 which the improvement in question will impose on particular 
 classes by lightening in some other way the contributions of 
 these classes to the public needs ; but the discussion in the 
 last chapter will have shown that we cannot practically hope 
 to attain more than a rough approximation to equity in the 
 allotment of the burden of taxation. In the latter case 
 there is prima facie no ground for compensation, so far 
 as the change in question really carries out the design of 
 the legislature ; since it is obvious that if changes in taxa- 
 tion are designedly of a distributional kind, if the aim in 
 making them is to carry out more exactly the principle of 
 proportional equality in taxation, however this principle 
 may be defined, their aim would be defeated by giving 
 full compensation to the persons who were losers by the 
 change. For a similar reason, no general claim to com- 
 pensation can be held to arise, in the case of changes in 
 the incomes of different classes, caused by public expendi- 
 ture undertaken with a view to equalisation of oppor- 
 tunities ; for instance, if the increase of competition for the 
 better paid positions in trade and industry, resulting from 
 the extension of educational advantages to the poor, reduces 
 the market value of educated labour. At the same time it 
 is important, in organising public expenditure on education,
 
 198 ELEMENTS OF POLITICS CHAP. 
 
 to avoid the hardship as well as waste that may be caused 
 by artificially increasing the supply of any particular class 
 of skilled services, and thus preventing an adequate return 
 for the labour and expense which the acquisition of the 
 skill has involved. 
 
 This leads us to consider generally the case of detriment 
 caused to the economic interests of special classes of persons 
 by some action of Government other than taxation or 
 legislation that invades established rights. An important 
 instance of this occurs when Government undertakes indus- 
 tries in competition with the industries of private indi- 
 viduals ; or gives special facilities and encouragement for 
 the undertaking of such industries. Here, I conceive, the 
 only admissible claim to compensation must be rested on 
 the degree of loss inflicted by such competition, rather 
 than on the mere fact that loss is suffered : since such 
 loss is in kind similar to that which, under the conditions 
 of open competition, is continually inflicted on private 
 individuals or companies by the success of rivals. Sup- 
 pose, for instance, that a railway was made for which the 
 land required was obtained by free purchase from the 
 owners, without governmental interference : it is obvious 
 that no one would think of expecting the railway company 
 to compensate for the loss inflicted on a stage-coach com- 
 pany. And if so, it does not seem that the stage-coach 
 company can acquire any additional claim for compensation, 
 because the land is compulsorily taken, or the railway 
 made at the public expense. But, owing to the magnitude 
 of the resources at the disposal of a government, it is no 
 doubt a peculiarly formidable industrial rival ; care should 
 therefore be taken that it does not use its giant's strength as 
 a giant, so as to inflict on private industries loss much more 
 severe and sudden than they would be exposed to in ordinary 
 industrial competition. Where action causing such sudden 
 and severe loss cannot be deferred, it is reasonable that 
 some compensation should be given to the persons damnified. 
 
 The same general considerations appear to be applicable 
 to the case of the withdrawal of advantages which have been
 
 xii GOVERNMENTAL COMPENSATION 199 
 
 practically conferred on private traders by the action of 
 Government, without being legally secured to the persons 
 enjoying them. 1 
 
 1 I may illustrate this case by an example of current interest in England, 
 which at the same time presents a special complexity : viz. the question of 
 compensation due to the owner of a public-house who is deprived of the 
 right of selling alcoholic liquors. In discussing this question we have 
 to distinguish between the extra element of value given by the limita- 
 tion of competition that results from the licensing system and what 
 would have been the value of the business if no such limitation had 
 existed. Of course an exact separation between the two elements is practi- 
 cally impossible ; but theoretically they stand in different relations to 
 a claim for compensation. For the latter element I consider that compensa- 
 tion is clearly due on the principle, and with the qualification, explained in 
 the preceding section : since the view that alcohol-selling is to be treated 
 as altogether mischievous like slave - trading appears to me fanatical. 
 But the additional element of value due to the governmental limitation of 
 competition stands on a different footing, if no guarantee of the permanence 
 of this limitation was given by Government when the system was instituted. 
 So far as this element is concerned, it does not seem that the traders affected 
 by any change in the system have any claim to compensation for the 
 pecuniary damage which the change may inflict on their property ; provided 
 that the change is not made suddenly, but with the allowance of an adequate 
 interval between the announcement of the change and the time of its taking 
 effect.
 
 CHAPTEE XIII 
 
 LAW AND MORALITY 
 
 1. IN an earlier chapter I incidentally noticed the dis- 
 tinction between Ideal Morality or the true moral code 
 by many conceived and spoken of as the " Law of God " 
 and Positive Morality, or the rules of duty supported 
 by the sanctions of public opinion in any given age and 
 country. It does not fall within the plan of this treatise 
 to discuss the principles of the true moral code, except so 
 far as this relates to the conduct of Governments, or of 
 private persons in their relations to Government. But the 
 moral opinions and sentiments prevalent in any community 
 form so important a consideration in practically determining 
 how its government ought to act, that it is desirable to 
 survey briefly the general relations of Positive Morality to 
 Positive Law in a modern State. 
 
 I must begin by making more complete the general con- 
 ception of " legal " in contrast to " moral " rules which was 
 introduced in Chap. II. I there, following Bentham and 
 Austin, regarded as " legal " those rules of which the viola- 
 tion is repressed, directly or indirectly, by the action of 
 Government or its subordinates ; whereas the violation of a 
 rule of positive morality is only punished by general dis- 
 approbation and its social consequences. This definition 
 corresponds approximately to the usage of the term " law " 
 in a well-ordered society, and lays stress on a characteristic 
 of fundamental importance. But this difference in the sanc- 
 tions attached to legal and moral rules respectively is not
 
 CHAP, xiii LA W AND MORALITY 201 
 
 the only general and important distinction that a comparison 
 of the two systems of rules shows ; there is a difference of 
 another kind in the comparative definiteness and systematic 
 coherence of the two codes, to which I wish now to draw 
 attention. 1 
 
 Let us first observe that it would not be quite exact to 
 define a law as a rule actually enforced by governmental 
 penalties ; since judges and magistrates are admittedly 
 liable to err, and when they err, it would be correct to say 
 that they have " mistaken the law," and applied a rule that 
 is not really a part of the law of the land. 2 What, then, 
 precisely is the intellectual process by which a right judicial 
 decision may be reached ? The answers to this question 
 are somewhat different in different countries and at different 
 times. In such a community as we have throughout con- 
 templated, I have assumed the existence of some established 
 organ of legislation, some body or combination of bodies, 
 whose general commands relative to the social conduct of 
 members of the community will be unquestioningly applied 
 by judges and, generally speaking, obeyed by the bulk of 
 private members of the community. As we saw, it does 
 not follow that the rules which it is the practice of Courts 
 to apply have been all derived from this source : but in 
 some countries they have in the main been formally so 
 
 1 The comparison thus drawn between Positive Law and Positive Morality 
 is of some importance, as we shall see, in respect of the practical relations 
 between the two which it is the object of this chapter to discuss. But I 
 have developed it at more length than I should otherwise have done in view 
 of a subsequent discussion of International Law and Morality in Chap. XVII., 
 for which the comparison here made appears to me an indispensable pre- 
 liminary. 
 
 2 In England, indeed, a decision of the highest Court of Appeal can hardly 
 be held to be inconsistent with law, since, by a professional custom that has 
 now the force of law, all other judges are bound to decide subsequent cases 
 in accordance with it ; if, therefore, it is inconsistent with law as it has been, 
 the Court must be held to have practically made new law in pronouncing it. 
 But in countries other than England and her dependencies and the United 
 States, judges are not so definitely bound to decide according to precedents ; 
 so that the decision of one judge may be contradicted by the decision of 
 another in a similar case, and then it will manifestly follow that one of the 
 two decisions was not in accordance with law.
 
 202 ELEMENTS OF POLITICS CHAP. 
 
 derived ; that is, codes have been framed intended to cover 
 the whole or chief part of the field with which judicial 
 decisions have to deal. So far, then, as this is the case the 
 judge's function is merely to interpret the code; if it is 
 clear and complete, the process is easy and straightforward : 
 but if any of the terms used in it are vague, he has to give 
 them a precise meaning ; if they are distinctly ambiguous 
 in ordinary use, he has to infer from the rest of the code 
 which meanings are intended ; if two rules in the same 
 code are apparently inconsistent, he has to find out some 
 means of reconciling them, or to decide which is to give 
 way to the other. It will easily be understood that this 
 function requires care and subtlety and trained skill, even 
 in the simplest case of a code recently framed : but it 
 becomes more complex and usually more difficult when 
 some time has elapsed, in which the code has been im- 
 portantly modified by fresh legislation ; since this not only 
 increases the aggregate of rules that have to be interpreted, 
 but also still more the danger of inconsistency in them, 
 from the new matter introduced at different times by legis- 
 latures differently composed. 
 
 And the complexity is greater still in such a case as 
 our own, where, as we saw, a great part of the Law has had 
 an origin independent of the action of the Legislature ; 
 being composed partly of old customary rules gradually 
 made more definite by judicial interpretation, partly of rules 
 introduced by judges at an earlier stage of our history, from 
 Roman law or other foreign sources, or from their own moral 
 consciousness. In this case Law presents itself as a system 
 of rules, heterogeneous both in their intellectual origin and 
 in the source of their obligation regarded from the judges' 
 point of view, some are binding because the Legislature 
 has laid them down, others because previous judges have 
 agreed in accepting them. But, whatever their origin, there 
 are two conditions to which in their application as law they 
 are universally subject : they must be interpreted so as to 
 be mutually consistent, and cogent reasons for a decision in 
 every case that presents itself must, if possible, be somehow
 
 xin LAW AND MORALITY 203 
 
 extracted from them. It is in the fulfilment of these con- 
 ditions that judicial skill is shown, and in the endeavour to 
 fulfil them under difficulties a certain amount of judicial 
 law-making inevitably occurs from time to time ; for if two 
 rules as previously defined are found to collide, or if there 
 are two competing analogies equally applicable to a case 
 that is not clearly included under any pre-existing rule, the 
 judge is forced to give a fresh determination to the law that 
 it is his aim merely to interpret. It should be observed, 
 however, that the limited legislative power thus placed in 
 the hands of a judge in a modern civilised community, is 
 not placed there because he is selected or qualified for the 
 purpose of exercising it ; rather, we may say that he is 
 selected and qualified for the purpose of keeping it as much 
 as possible unexercised. His primary duty is to apply the 
 law as it is, not to make it what he thinks it ought to be ; 
 and the more conscientiously and skilfully he fulfils his 
 primary duty, the more will his power of determining law 
 be limited to cases that are really unprovided for or am- 
 biguously provided for in the law as already determined. 
 Sometimes, in such innovations the judge is doubtless in- 
 fluenced by considerations of abstract equity or utility, but 
 only within the strict limits above explained ; since, where 
 the decision clearly most in harmony with the analogies of 
 established law is plainly inexpedient, it would now be 
 generally recognised as a case for the intervention of the 
 Legislature. In any case, the result is that in one way or 
 another, either by the authority of the judge or by that of 
 the Legislature, divisions of opinion as to the right applica- 
 tion of received legal rules and also any marked diverg- 
 ences between such rules and what is generally regarded as 
 expedient tend to be continually removed. And as the 
 development of Law goes on, the function of the judge is 
 confined within ever narrowing limits ; the main source of 
 modifications in legal relations comes to be more and more 
 exclusively the Legislature. 
 
 2. I have examined with some minuteness the process 
 of development of law in a modern community, because it
 
 204 ELEMENTS OF POLITICS CHAP. 
 
 is due to the special characteristics of this process that the 
 differences in such a community between Law and Positive 
 Morality, when compared merely as intelligible systems of 
 rules without regard to the motive for obeying them, are as 
 striking and instructive as the differences in the sanctions 
 attached to the two systems. We can see how law naturally 
 tends to be greatly superior to Positive Morality in definite- 
 ness and consistency ; since in the case of moral rules there 
 is no judicial process by which doubts as to what the 
 accepted rule is on any question can be authoritatively 
 settled, and no legislative process by which any divergence 
 from what, in the opinion of thoughtful persons, ought to be 
 established morality, can be at once and decisively removed. 
 And it may be observed that the differences between the 
 two systems of rules, both in respect of sanction and in 
 respect of systematic intelligibility, have tended to become 
 more marked as modern civilisation has developed. In 
 earlier stages of European civilisation, there has often been 
 law in real operation, in the sense of a complicated system 
 of precise rules applied to the guidance of men's conduct 
 by experts whose authority is generally accepted, with little 
 or no governmental force sustaining the acceptance of the 
 rules. 1 Under these circumstances, Law approaches to 
 Positive Morality in respect of its sanction ; and, on the 
 other side, in periods when casuistry has really flourished, 
 as in the period of the later Middle Ages, Positive Morality 
 has shown an approximation to Law in the elaborateness and 
 precision of its rules. From the fourteenth century onward, 
 the acumen and industry of ecclesiastical writers were largely 
 occupied in working out in a quasi-legal manner a body of 
 rules, to be applied in the confessional to the practical 
 
 1 For instance, Maine, in his account of the ancient Irish Law developed 
 by the Brehons (Early History of Institutioiis, chap. ii. ), says that "the 
 process of the Irish Courts, even if it was compulsory, was at the utmost 
 extremely weak" ; and "that it is at least a tenable view that the institu- 
 tions which stood in the place of Courts of Justice only exercised jurisdiction 
 through the voluntary submission of intending litigants." Similarly as I 
 learn from Mr. Bryce in Iceland in the latter part of the tenth and the 
 eleventh centuries the so-called Courts of Law liad no coercive force at all.
 
 XIII LA W AND MORALITY 205 
 
 guidance of ordinary private members of the medieval 
 community : while, before the Eeformation, there was no 
 disposition, at once strong, widespread, and unconcealed, to 
 dispute the claim of these writers to authority in the matters 
 with which they dealt. 
 
 If we ask why this quasi-legal treatment of morality fell 
 into the disrepute in which it now lies, there is a twofold 
 answer to be given, apart from the general indignation 
 caused by Jesuitry, the effect of which taken alone would 
 doubtless only have been transient. Partly the belief came 
 to be widely held that in matters of morality, speaking 
 broadly, any one honest man is as much an expert as any 
 other, and that it is his duty to exercise his own judgment 
 and follow the light of his own conscience. Partly so far 
 as some further enlightenment of a plain man's conscience 
 was felt to be a desideratum experience was thought to 
 have shown the danger of trying to obtain this enlighten- 
 ment from the industry and ingenuity of systematic moral- 
 ists, exercised in formulating precisely the generally accepted 
 rules : since the quasi-legal process of scrutinising closely 
 the cases of difficulty and apparent conflict among such rules, 
 in order to draw the lines of duty clear, must tend to bring 
 into demoralising prominence the uncertainty and disagree- 
 ment among experts on moral questions : while the lack of 
 an authority to decide controversies rendered it impossible 
 to reduce the element of doubt and discussion in the manner 
 in which it is continually reduced in the development of 
 law. And thus, as I have said, the moral code of a modern 
 country has come to be necessarily inferior as an intelligible 
 system to its law, because in the case of the former every 
 man is encouraged to think himself a judge, there is no 
 final court of appeal, and no one can admit any external 
 legislation. 
 
 The consequence of this is, not only that we find, in the 
 generally accepted moral code of a modern society, an amount 
 of conflict, vagueness, and uncertainty, that could not for a 
 moment be tolerated in modern law : but also that, when we 
 examine closely the aggregate of opinions and sentiments, the
 
 206 ELEMENTS OF POLITICS CHAP. 
 
 expression of which in word or act constitutes the effective 
 sanction of positive morality, we find, along with the 
 generally accepted code, a number of special codes, more or 
 less divergent from it on important points. What is called 
 the code of honour the rules of behaviour maintained by 
 the consensus of gentlemen in modern Europe is a well- 
 known instance of this : but the same phenomenon is 
 exhibited in some degree by various other divisions of 
 society, based upon different grounds, e.g. by religious 
 sects and parties, and the members of different trades and 
 professions. And thus sometimes, owing to the predomin- 
 ance of particular religious sects or industrial classes, or of 
 particular schools of thought or drifts of opinion, in different 
 localities, we find noteworthy local variations in the prevalent 
 judgment as to what is mischievous or the reverse in conduct. 
 3. These differences become important when we proceed 
 to consider the practical relations between the two systems 
 of rules that we have been comparing. First, we have to 
 recognise the possibility that Government, in legislating 
 with a view to the general happiness of the governed, may 
 come into conflict with the positive morality prevalent 
 among them ; may be led to enforce rights popularly re- 
 garded as wrongs, to compel men by legal penalties to do 
 what they are commonly thought right in refusing to do, or 
 to compel them to abstain from doing what is commonly 
 thought innocent if not laudable. This is, indeed, less likely 
 to happen in the case of legislators appointed by popular 
 election, or even in the case of rulers, however appointed, 
 whose education has tended to make them share the moral 
 opinions and sentiments current in their community ; since 
 they are likely to share, among other current opinions, the 
 belief that what is commonly thought right is conducive to 
 the general happiness. Still even in this case, owing to 
 the divergences above noticed within the limits of the same 
 community, such conflicts may occasionally arise : e.g. the 
 majority of a modern legislature may think it expedient to 
 close theatres or public-houses on Sunday, when public 
 opinion holds it allowable and desirable to keep them open,
 
 xiil LA W AND MORALITY 207 
 
 or to open museums and picture-galleries on the same day, 
 when public opinion thinks it right to close them. 1 Any 
 serious conflict of this kind is mischievous in two ways : 
 by rendering it difficult to enforce the law in the particular 
 case without an unusual exercise of force and consequent 
 intense and diffused annoyance, and by its tendency to 
 weaken the habit of obedience to law and government in the 
 citizens generally. We cannot, indeed, therefore lay down 
 that such a conflict is always to be avoided : the question must 
 be decided in each particular case by a comparative forecast 
 of the mischiefs just mentioned, and the good to be expected 
 from the proposed legislation. But we may say generally 
 that government ought to take all possible care to mini- 
 mise the evil of this conflict, supposing it to be in some degree 
 inevitable ; thus, when any new governmental interference 
 of a coercive kind is required to repress practices dangerous 
 to social wellbeing, or otherwise to attain some important 
 public end, it is expedient, if possible, that it should only 
 take place after public attention has been strongly called to 
 the need which the new regulations are designed to meet. 2 
 
 Further, it is to be noted that even legislative measures 
 that have the approval of the majority may come into 
 collision with the moral beliefs and sentiments of important 
 portions of the community : and the prospect even of 
 this more limited conflict may be a weighty reason for 
 deferring or modifying governmental interference that would 
 be otherwise expedient. Even if the legislation in question is 
 not exactly disapproved as immoral, it must always be a 
 serious drawback to its expediency that it will have to 
 contend with strong forces of desire, interest, and habit, with- 
 out receiving effective support from Positive Morality. 
 
 1 In the case of a community governed by foreigners the danger of this 
 kind of conflict is, of course, much greater. Thus in several important 
 legislative measures our Indian Government has acted contrary to the pre- 
 valent moral opinion of Hindoos : e.g. in prohibiting infanticide and the 
 burning of widows, in allowing the remarriage of widows, and in maintaining 
 the rights of inheritance of converts to Christianity. 
 
 2 In a state under popular government, it is of course impossible that any 
 decided conflict between law and the moral opinion of a majority of the 
 electorate should be more than very temporary.
 
 2o8 ELEMENTS OF POLITICS CHAP. 
 
 Thus the actual condition of the positive morality of the 
 community including under the term all prevalent opinions 
 as to the bad and good effects of actions confines within 
 rather narrow limits the power of an enlightened Govern- 
 ment to act upon the community governed in conformity 
 to the conclusions of the highest political wisdom of the 
 time. On the other hand, it is no less important to note 
 that the legislator has within limits a valuable power of 
 modifying positive morality. Through the general habit of 
 law-observance and the general recognition of the duty of 
 obeying rules laid down by a legitimate authority which 
 we may expect to find in any well-ordered community the 
 legislator may obtain a general obedience to rules to which 
 current morality is indifferent or even mildly averse ; and 
 then by the reaction of habitual conduct on opinion, a moral 
 aversion to the opposite conduct may gradually grow up. In 
 other cases, where Government interferes to prevent mis- 
 chievous acts which are already vaguely regarded with some 
 degree of moral disapprobation, the legislator or judge may 
 produce a more sudden and impressive effect by giving 
 sharpness and decision to this disapprobation. Especially 
 we may say that the judicial organ of government is within 
 certain limits accepted as a moral expert ; if within these 
 limits it classifies an act with crimes, public opinion is 
 prepared so to regard it. 
 
 4. But Positive Morality, in a well-ordered State, does 
 not only support the action of Government : it has, of 
 course, the further important function of regulating conduct 
 in matters beyond the range of governmental coercion. To 
 consider in detail how this function ought to be performed 
 would be to write a treatise on ethics : but we may briefly 
 note certain parts of social conduct where for special reasons 
 the influence of moral opinion is indispensable or preferable, 
 as a means of producing the kind of effects at which Law 
 aims. In this survey it is convenient to distinguish be- 
 tween the penalties of Positive Morality and its rewards 
 between moral censure and moral approval or praise. It is 
 to the operation of moral censure that our attention is
 
 xni LAW AND MORALITY 209 
 
 naturally directed in studying the analogy between Law 
 and Morality, and I shall accordingly begin by considering 
 this : but, as we shall presently see, the respective functions 
 of censure and praise cannot be sharply separated. 
 
 First, then, moral censure is the chief resource that 
 remains available, when the means which the legislator 
 employs fail to attain the end which he has in view, from 
 accidental circumstances defeating their normal operation. 
 For instance, granting that the conditions to which the 
 legal validity of contracts is subjected are rightly imposed 
 as generally suitable to the end in view, still particular 
 cases may occur in which an engagement to do some lawful 
 act was clearly made with full deliberation and without 
 any coercion or misrepresentation or improper inducements, 
 while at the same time the legal conditions have not been 
 fulfilled. In such cases it is generally desirable that the 
 violation of the engagement should be censured, though 
 reparation cannot be legally exacted. So again, a testator 
 may accidentally fail to make a valid will, though his 
 intention may be expressed with sufficient clearness to 
 make it the duty of his heir to conform to it if it is 
 not in its nature improper : here, too, the moral opinion 
 of persons acquainted with the circumstances may use- 
 fully take the place of the legal coercion that cannot be 
 applied. 
 
 Secondly, there are cases in which the intervention of 
 law is inapplicable as a remedy for undoubted mischief, 
 owing to the general importance of leaving wide discretion 
 to the private individuals who would have to be coerced. 
 One chief case of this class is the treatment of children by 
 parents : in order to maintain the parents' sense of respon- 
 sibility on the one hand, and the child's habit of obedience 
 and respect on the other, it does not seem generally ex- 
 pedient that Government should interfere with the domestic 
 rule of the parent, unless there is evidence of gross neglect 
 or cruelty ; but there may easily be breaches of parental 
 duty falling short of this, which may properly be visited 
 with moral censure. 
 
 P
 
 2io ELEMENTS OF POLITICS CHAP. 
 
 So again, we have before 1 seen that it is impossible to 
 define the spheres of individual freedom for adults so that 
 the observance of the limits may completely prevent all 
 serious mutual annoyance ; and, in particular, we have noted 
 that the power which an individualistic system must neces- 
 sarily secure to sane adults generally, of freely entering into 
 and terminating economic relations with other individuals, 
 may be used to injure and coerce those others. In such 
 cases public opinion may importantly supplement law in 
 repressing malevolent or intimidative exercise of legal 
 freedom, and reducing mutual annoyance to a minimum ; 
 though it must be borne in mind that this very public 
 opinion is itself a coercive force which, if misdirected, may 
 do harm of this kind in the worst degree. 
 
 Again, there must always be cases, especially in the 
 department of contract, in which the enforcement of strict 
 legal rights would owing to exceptional circumstances 
 which a legislator or judge cannot safely take into account 
 be manifestly harsh in its effects, and would show a 
 repulsive want of normal human sympathy. 
 
 Again, there are acts so highly detrimental to social well- 
 being that it is desirable to supply a strong inducement to 
 abstain from them, which are yet unsuitable objects of legal 
 repression ; because the temptations to do them being strong 
 and concealment easy, it is impossible to prevent them 
 altogether, while at the same time if they are driven into 
 the greatest possible secrecy their mischief is liable to take 
 a much more aggravated form. The leading case of this 
 kind is intercourse of the sexes outside the conjugal relation : 
 it has always been recognised that it is the special function 
 of Positive Morality to keep this within the narrowest 
 possible bounds, by affixing a strong stigma of discredit to 
 such intercourse : but it has also been almost universally 
 held that it would be unwise to make it legally punishable. 
 
 Finally, there is much mischief similar in kind to that 
 which law aims at repressing, which it is expedient to leave 
 to morality to deal with, merely because it is not sufficiently 
 
 1 See Chap. IV. 4.
 
 xin LAW AND MORALITY 211 
 
 important in degree : such as insults and calumnies of minor 
 gravity, deceptions and misrepresentations which have not 
 caused any considerable amount of definite damage, though 
 to leave them uncensured would tend to impair the pleasure 
 and profit of social intercourse. 
 
 Let us turn to consider the matters in which the opera- 
 tion of morality by praise rather than censure is of special 
 political importance. The chief case under this head is the 
 expenditure of wealth for public ends, or for the mitigation 
 of the most painful inequalities resulting from the present 
 individualistic distribution of wealth. Expenditure of this 
 kind, unless it shows marked unwisdom in the adaptation 
 of means to ends, is almost universally praised ; but 
 abstinence from such expenditure is not commonly blamed 
 in any particular case. Some censure, no doubt, is incurred 
 by a rich man who spends his whole income in luxuries 
 for himself and his family and in exchanging luxurious 
 hospitalities with other rich men. But though he is cen- 
 sured in a broad way for this course of life, the censure is 
 vague and general, and does not attach itself to abstinence 
 from any particular act of philanthropy. It is rightly, as 
 I think held that the struggle to get rich is socially use- 
 ful, so far as it impels the struggler to render services to 
 society deserving of high remuneration ; and that any such 
 restrictions on a rich man's freedom of expenditure, as would 
 amount to graduated taxation enforced by moral censure, 
 must tend to impair the stimulus to this useful effort. 
 Still, undoubtedly, a powerful pressure though rather in 
 the form of praise than of censure is exercised by public 
 opinion on rich men in the direction of eleemosynary 
 and public-spirited expenditure, and is powerfully aided by 
 all earnest teachers of the prevalent forms of religion ; and 
 under the influence of this moral pressure the amount of 
 wealth and labour voluntarily devoted to the relief of 
 distress, and to the promotion of objects of public utility, is 
 in any modern community so considerable, that it becomes 
 an important factor in the practical determination of the 
 scope of governmental interference for similar purposes.
 
 212 ELEMENTS OF POLITICS CHAP. 
 
 Thus, for instance, political thinkers and statesmen, in 
 advocating the English method of dealing with pauperism, 
 have usually assumed not only that public poor-relief will 
 be supplemented by private almsgiving, but that a funda- 
 mentally important part of the work may be left to the 
 latter. As we saw, the distinctive principle of the English 
 system is that Government is not to discriminate between 
 the deserving and the undeserving poor, but to secure to all 
 who are destitute a minimum of subsistence under conditions 
 deterrent but not painful : and this principle would be 
 rejected as too harsh by many who now accept it, were it 
 not for the assumption that private almsgivers will be 
 ready to undertake the task of discrimination which 
 Government declines, and to accord more generous and 
 tender treatment to those who have fallen into distress 
 through undeserved calamities. 
 
 Similarly, as regards the building and maintenance of 
 hospitals and asylums for persons physically and mentally 
 afflicted, the provision for education in all grades, the pro- 
 motion of culture by means of museums and libraries, the 
 endowment of scientific research, and other ends of re- 
 cognised public utility; the question what Government 
 should do cannot be answered unless we know what the 
 liberality of private individuals may be expected to accom- 
 plish if Government does not interfere. 
 
 5. Since, then, the force of opinion and sentiment in 
 the community as to the social duties of individuals is so 
 valuable to the government, both as support and as supple- 
 ment, and so dangerous in antagonism, it remains to inquire 
 how far it is a proper function of government to take 
 measures to stimulate and regulate this force. 
 
 The question, however, does not practically present itself 
 in this simple form in the political societies of Europe and 
 America ; since in these societies the systematic teaching of 
 morality to adults and, to a great extent, the moral educa- 
 tion of the young are, by a firmly established custom, left 
 in the hands of one or more of the different Christian 
 churches : so that the problem of governmental interference
 
 XIII LAW AND MORALITY 213 
 
 for the moralisation of the citizens takes the form of a 
 question as to the " relations of Church and State." Still, 
 it seems desirable, in such a treatise as the present, to begin 
 by considering the problem in a more general way. 
 
 Let us suppose, then, that we are dealing with a civilised 
 community in which there is either no religion having 
 general acceptance or important influence, or else only 
 religions that have no important connection with morality ; 
 I mean religions in which the objects of worship are 
 mainly conceived to be propitiated otherwise than by the 
 performance of social duty : and let us ask whether govern- 
 ment, under these circumstances, should undertake the 
 business of teaching morality and stimulating moral senti- 
 ments. The answer to this question would seem to me to 
 depend partly on the answer given to one of the most 
 fundamental questions of moral philosophy : viz. whether 
 the performance of social duty can be proved scientifically 
 with as strong a " consensus of experts " as we find in 
 established sciences generally to be certainly or most 
 probably the means best adapted to the attainment of the 
 private happiness of the agent. 
 
 I. If we answer this question in the affirmative, it does 
 not indeed follow that morality ought to be based on self- 
 interest alone ; but it would clearly be an important gain 
 to social wellbeing to correct the erroneous and short- 
 sighted views of self-interest, representing it as divergent 
 from duty, which certainly appear to be widely prevalent 
 in the most advanced societies, at least among irreligious 
 persons. Hence there are at any rate strong reasons for 
 regarding it as the duty of government, in the case supposed, 
 to aim at removing this widespread ignorance and error by 
 providing teachers of morality : and such a provision might 
 be fairly regarded as indirectly individualistic in its aim, 
 since to diffuse the conviction that it is every one's interest 
 to do what is right would obviously be a valuable protection 
 against mutual wrong. It does not, however, follow that 
 it would be expedient to have morality taught to adults 
 at least by salaried servants of government. For unless
 
 214 ELEMENTS OF POLITICS CHAP. 
 
 we assume the harmony between duty and self-interest to 
 be demonstrable to an untrained intellect, such teaching 
 would only be efficacious if the teachers inspired confidence : 
 and the analogy of the sanitary instruction imparted by the 
 medical profession suggests that confidence, in the degree 
 required, would be more readily given to moralists freely 
 chosen by those whom they advised. Further, in any cases 
 of doubt or dispute, in which it might seem to be the 
 interest of governing persons that the governed should act 
 in the manner recommended by the moralists, the latter 
 would be liable to the suspicion that they were biassed by 
 the prospect of advancement or fear of dismissal : so that 
 they would give but a feeble support to Government just, 
 perhaps, when their support was most needed. On the 
 other hand, if this danger were partially met by securing 
 the teachers from dismissal, the service would be liable to 
 be encumbered with unfit persons. 
 
 II. But the objections against governmental provision of 
 professional moralisers become much stronger, if we regard 
 it as impossible to prove by ordinary mundane considera- 
 tions that it is always the individual's interest in the present 
 condition of human society to do his duty ; or if, granting 
 the evident coincidence of self-interest and duty, it is still 
 held that self-regard should not be the normal motive to 
 moral action. For in either of these cases the only teaching 
 likely to be effective is such as will powerfully affect the 
 emotions of the taught, no less than their intellects ; we 
 should, therefore, generally speaking, need teachers who 
 themselves felt, and were believed to feel, sincerely and 
 intensely, the moral and social emotions that it was their 
 business to stimulate ; and governmental appointment and 
 payment would hardly seem to be an appropriate method of 
 securing instructors of this type. If a spirit of devotion to 
 a particular society or to humanity at large, and readiness 
 to sacrifice self-interest to duty, are to be persuasively in- 
 culcated on adults, the task should, generally speaking, 
 be undertaken by persons who set an example of self- 
 devotion and self-sacrifice ; and therefore by volunteers,
 
 xin LAW AND MORALITY 215 
 
 rather than by paid officers. The case would be somewhat 
 different with the more malleable natures of children : 
 it would still be clearly expedient that schoolmasters as 
 well as parents should seriously endeavour to promote the 
 growth of moral habits and sentiments in the youthful 
 minds committed to their charge. But it seems very 
 doubtful how far, in the circumstances supposed, this growth 
 would be most effectively promoted by formal instruction ; 
 and not rather partly by steady enforcement of received 
 rules, with such incidental explanations of their rationale 
 as can be effectively given, as polite manners are now 
 ordinarily taught ; and partly by stimulating social senti- 
 ments through a well-selected study of literature and history, 
 as patriotism and public spirit are now mainly promoted. 
 
 Let us now turn from the purely hypothetical problem 
 that we have been discussing, to consider the form which 
 the question of governmental interference to promote 
 morality actually takes in modern European communities. 
 For ordinary members of such communities, the connection 
 of any individual's interest with his duty is established by 
 the traditional Christian teaching as to the moral govern- 
 ment of the world, and the survival of the individual after 
 his corporeal death. Accordingly, this traditional teaching 
 though it by no means relies solely on appeals to self- 
 interest still always includes in its store of arguments 
 appeals of this kind, having irresistible cogency for all 
 hearers who believe the fundamental Christian doctrines. 
 So far as the rules of duty thus taught are those commonly 
 accepted by thoughtful persons, the value of the aid given 
 to the work of government by this supply of extra-mundane 
 motives to the performance of social duty can hardly be 
 doubted. But the expediency of governmental action to 
 secure this aid is importantly affected by the fact that the 
 teachers who give it are actually organised in independent 
 associations called churches, whose lines of division differ 
 from and to an important extent cut across the lines of 
 division of political societies ; and which for the most part 
 would resist strongly any attempt to bring them directly
 
 216 ELEMENTS OF POLITICS CHAP, xin 
 
 and completely under the control of the secular government. 
 The practical question therefore is, whether government 
 should leave these churches unfettered treating them like 
 any other voluntary associations based on free contract 
 or should endeavour to obtain a partial control over them 
 in return for endowments or other advantages. I do not 
 propose in this treatise to enter upon the historical or the 
 theological aspects of this controverted question : but it is 
 easy to show that the settlement of it is likely to be at 
 once difficult and of great importance to political well- 
 being. For, so far as the priest or religious teacher seeks 
 not merely to provide a harmonious and satisfying expres- 
 sion for religious emotion, but also to regulate the behaviour 
 of man to his fellows in domestic and civil relations, using 
 as motives the hope of reward and fear of punishment from 
 an invisible source, his function obviously tends to become 
 quasi-governmental", accordingly, where religious belief is 
 strong, the power given to the priesthood by its control 
 of these extra-mundane motives renders it not only a 
 valuable auxiliary to the ordinary or secular government 
 in the business of maintaining the general performance of 
 civic duty, but also a most formidable rival, in case of any 
 conflict between the priesthood and the organs of secular 
 government. A similar rivalry and conflict is of course 
 possible between a non-religious association among the 
 members of any political community and the government 
 of that community : and history affords some striking 
 examples of such rivalry, though none comparable in extent 
 and importance to the conflict for power between " Church 
 and State " in Western Europe. I have accordingly thought 
 it best to consider the question of governmental intervention 
 in religious matters in a special chapter on the Eelation of 
 the State to Voluntary Associations, 1 which will be more 
 appropriately introduced after we have examined the organisa- 
 tion of secular government. 
 
 1 Chap. XXVIII.
 
 CHAPTEE XIV 
 
 THE AEEA OF GOVERNMENT STATES AND DISTKICTS 
 
 1. IN the preceding chapters with the partial exception of 
 Chapter XL I have discussed the functions of Government, 
 without regard to the limitations of its area. I have spoken 
 from time to time of " the community " whose members 
 habitually obey the government, and in whose interests 
 government is assumed to exercise its functions ; but I have 
 not recognised any definite limits to the community : so 
 far as the main discussion has gone, the community might 
 be coextensive with the human race. The time has now 
 come to direct attention to the limits of the area of govern- 
 ment. As actually existing, they are of two kinds: (1) 
 each independent political society comprises only a portion 
 of civilised humanity, so that a fundamentally important 
 department of the work of its government consists in the 
 management of its relations to societies and individuals 
 lying beyond its pale : and (2) in every independent political 
 society the functions of government are to an important 
 extent exercised by individuals or bodies whose powers 
 extend over a narrower area than the whole society " local 
 governments," as they are called. Accordingly, I propose 
 in the present chapter to consider briefly how these two 
 kinds of limits the boundaries of external separation, 
 and the boundaries of internal subdivision are to be 
 determined. 
 
 When, however, we raise the question of what ought to be, 
 in regard to external boundaries, we at once bring into view 
 
 217
 
 218 ELEMENTS OF POLITICS CHAP. 
 
 two different stages of divergence between accepted political 
 ideals and actual political facts. Our highest political ideal 
 admits of no boundaries that would bar the prevention of 
 high-handed injustice throughout the range of human 
 society : and from the point of view of this highest ideal it 
 might be fairly urged that we ought no more to recognise 
 wars among nations as normal than we recognise wager 
 of battle as a remedy for private wrongs : and that if so, 
 we ought not to recognise as normal the existence of a 
 number of completely independent political communities, 
 living in close juxtaposition ; since we must expect that 
 grave and irreconcilable disputes among such communities 
 will be settled, as they always have been settled, by wars. 
 Certainly the effective substitution of any kind of judicial 
 process for wars among civilised states would seem to in- 
 volve the ultimate subjection of the relations of such states 
 to some kind and degree of common government, able to 
 bring overwhelming force to overbear the resistance of any 
 recalcitrant state; since judicial decisions which cannot 
 be enforced, cannot be expected to prevent wars. And 
 perhaps some federation of European or West-European l 
 States, with a common government sufficiently strong to 
 prevent fighting among these states, is not beyond the 
 limits of sober conjecture as to the probable future course 
 of political development. From the earliest dawn of 
 history in Europe, down to the present day, the tendency 
 to form continually larger political societies apart from 
 the effects of mere conquest seems to accompany the growth 
 of civilisation. The traditions of Borne and Athens make 
 it clear that these famous city-states were formed by the 
 cohesion of parts that had previously regarded each other 
 as foreigners and occasional enemies : and a similar tendency 
 to combine in continually larger aggregates is seen in the 
 early history of the Teutonic tribes. We see the same 
 phenomenon in the formation of the Leagues that are 
 prominent in the later period of the independence of Hellas : 
 
 1 I use this term to include all the European countries except Turkey 
 lying westward of Russia.
 
 xiv AREA OF GOVERNMENT STATES AND DISTRICTS 219 
 
 we can discern it though in a less simple form in the 
 development of European nations during the Middle Ages : 
 as exhibited in the union of Italy and of Germany it is 
 the most striking feature of recent European history ; and 
 North America shows us an impressive example of a 
 political society maintaining internal peace over a region 
 larger than Western Europe. 1 
 
 Usually no doubt this aggregation of civilised mankind 
 into larger unions, so far as it has been voluntary, has been 
 mainly due to the pressure of external dangers from enemies 
 common to the smaller uniting bodies; and no foreign 
 perils, sufficiently formidable to produce this effect, are at 
 present threatening the group of West-European nations. 
 But if the boundaries of existing civilised states undergo 
 no material change, the relative strength of the United 
 States, as compared with any one of the West-European 
 States, will before the end of the next century so decidedly 
 preponderate, that the most powerful of the latter will 
 keenly feel its inferiority in any conflict with the former. 2 
 And even apart from this motive to union, it seems not 
 impossible that the economic burdens entailed by war, the 
 preponderantly industrial character of modern political 
 societies, the increasing facilities and habits of communica- 
 tion among Europeans and the consequently intensified 
 consciousness of their common civilisation, may, before 
 many generations have passed, bring about an extensive 
 federation of civilised states strong enough to put down 
 wars among its members. But, in any case, this ideal is 
 at present beyond the range of practical politics. There 
 is not at present, and there is no immediate prospect of 
 
 1 I do not overlook the centrifugal forces that have also been at work 
 throughout European history : especially, in recent times, those due to the 
 claims of nationalities, and the tendency of colonies when full grown to 
 separate from the mother-country. Still it does not seem rash to forecast as 
 probable, on the basis of our knowledge of past history, that the forces 
 tending to the formation of continually larger political unions will on the 
 whole prevail. 
 
 2 Russia is likely to have a similar preponderance, in some respects more 
 alarming, though less in degree.
 
 220 ELEMENTS OF POLITICS CHAP. 
 
 developing, any consciousness of common nationality among 
 Europeans or West-Europeans as such : and the practically 
 dominant political ideal of the present age does not include 
 an extension of government beyond the limits of the nation. 
 As in Greek history the practically dominant ideal is a 
 society of City-states, independent, though observing in 
 their mutual relations some kind of common law, so, in the 
 period to which we belong, it is a society of Nation-states 
 under " International Law." l 
 
 2. To get a clearer view of this ideal, let us examine 
 more closely the conceptions of " State " and " Nation " as 
 currently used. 
 
 I must begin by distinguishing between (1) the nar- 
 rower use of the word " State " to denote the community 
 considered exclusively in its corporate capacity, as the sub- 
 ject of public as distinct from private rights and obliga- 
 tions ; and (2) its wider use to denote the community 
 however considered. In previous chapters we have been 
 led to conceive the community as capable of holding pro- 
 perty and incurring debts in its corporate capacity : and, 
 in speaking of these as the property and debts " of the 
 State," we intend to distinguish them from the aggregate 
 of the properties and the debts of the members of the 
 community. This distinction, we may observe, is recognised 
 by foreigners as well as natives. Thus, if Greece were to 
 go bankrupt the wealthy Greeks in England would not be 
 held liable for any part of the sums that their State owes 
 to Englishmen ; and, according to the usage of war, an 
 invader of England would freely take the public property 
 of the English State, but he would not seize the property 
 of individual Englishmen beyond exacting certain limited 
 " contributions." A similar distinction is implied when we 
 speak of philanthropic duties as incumbent on " society " but 
 not on " the State." At other times, however, we apply the 
 term rather to the " body politic " considered as an aggregate 
 
 1 The appropriateness of the term "law," as applied to the rules of 
 International conduct commonly so-called, will be considered in a subsequent 
 chapter (XVII.).
 
 xiv AREA OF GOVERNMENT STATES AND DISTRICTS 221 
 
 of individuals : thus we might speak of England as a rich 
 State, having in view the wealth possessed by the aggregate 
 of Englishmen. It would be inconvenient to be obliged to 
 avoid altogether either use of the term ; but I shall try to 
 prevent the ambiguity from causing any confusion. 
 
 In the present chapter I shall take the wider significa- 
 tion. I shall mean by a State what I have also called a 
 political society or community ; i.e. a body of human beings 
 deriving its corporate unity from the fact that its members 
 acknowledge permanent obedience to the same government, 
 which represents the society in any transactions that it 
 may carry on as a body with other political societies. And 
 I shall assume this government to be independent, in the 
 sense that it is not in habitual obedience to any foreign 
 individual or body or to the government of a larger whole. 1 
 It would, however, be contrary to usage to apply the term 
 " State " to all human societies living under independent 
 governments including (e.g.} nomad tribes : it must be 
 added therefore that the term implies a certain degree of 
 civilised order. The exact degree of civilisation implied, 
 according to usage, is hardly clear : but we may lay down 
 (1) that in a community that is called a State there is 
 understood to be an effective consciousness of the distinction 
 before explained, between the rights and obligations of the 
 community in its corporate capacity and the rights and 
 obligations of the individuals composing it ; and (2) that 
 the community so designated is understood to be in settled 
 occupation of a certain territory. It seems essential to the 
 modern conception of a State that its government should 
 exercise supreme dominion over a particular portion of the 
 earth's surface : and if we once admit that the range of 
 governmental control is to be limited, the advantage of 
 determining its limits by territorial boundaries is obvious : 
 
 1 It is to be observed that the assumption of complete independence is not 
 always implied in the current usage of the term "State." Thus, the several 
 members of the North American Union are called States, though not in- 
 dependent in their external relations, and not even completely independent 
 in their internal legislation and administration. But it seems to me most 
 convenient here to exclude this latter use.
 
 222 ELEMENTS OF POLITICS CHAP. 
 
 since the government's task of protecting its subjects from 
 wrong would manifestly become tenfold more difficult if 
 they were liable to be brought into contact, to an indefinite 
 extent, with persons who might legitimately refuse all 
 obedience to their government. Accordingly, in modern 
 times, it is generally recognised as a fundamental right of a 
 civilised state that its government should have unquestioned 
 power of determining and enforcing law within the limits 
 of the territory that is recognised as belonging to it. It is 
 only in the case of weak and imperfectly ordered com- 
 munities that serious limitations of this power are demanded 
 by the civilised communities who have dealings with them : * 
 and it is perhaps doubtful whether, even in such cases, more 
 good than harm results from granting the demand. 
 
 Indeed, in modern political thought the connection 
 between a political society and its territory is so close that 
 the two notions almost blend, and the same words are used 
 indifferently to express either : thus we sometimes mean by 
 a " State " the territory of a political community, and we 
 sometimes mean by a " Country " the political community 
 inhabiting it. We speak of crossing the boundaries of a 
 " state," and we say that a " country " has made up its 
 mind. 2 
 
 So far I have considered the unity of a State as depend- 
 ing solely on the fact that its members obey a common 
 government. And I do not think that any other bond 
 is essentially implied in the definition of a State. But 
 we recognise that a political society is in an unsatisfactory 
 and comparative unstable condition when its members have 
 no consciousness of any bond of unity among them except 
 their obedience to the same government. Such a society is 
 lacking in the cohesive force required to resist the dis- 
 organising shocks and jars which foreign wars and domestic 
 discontents are likely to cause from time to time. Accord- 
 
 1 Thus Europeans are not justiciable by native courts in the Turkish 
 dominions. 
 
 2 In ancient Greek thought a corresponding fusion took place between the 
 notions of "City " and "State," represented by the one word Pdis.
 
 xiv AREA OF GOVERNMENT STATES AND DISTRICTS 223 
 
 ingly, we recognise it as desirable that the members of a 
 State should be united by the further bonds vaguely implied 
 in the term Nation. I think, however, that attempts to 
 give definiteness to the implications of this latter term are 
 liable to obscure its real meaning: since I can find no 
 particular bond of union among those that chiefly con- 
 tribute to the internal cohesion of a strongly-united society 
 belief in a common origin, possession of a common 
 language and literature, pride in common historic tradi- 
 tions, community of social customs, community of religion, 
 which is really essential to our conception of a Nation-State. 
 The common idea of a nation no doubt contains the survival 
 of the familiar conception of kinship as the normal bond 
 for holding men together in a political society : accordingly 
 in popular talk it is often assumed that the members of 
 a Nation are descended from the same stock. But this 
 assumption in modern civilised countries is in palpable 
 conflict with facts : some of the leading modern nations 
 so called are notoriously of very mixed race, and it does 
 not appear that the knowledge of this mixture has any 
 material effect in diminishing the consciousness of common 
 nationality. Again, the memories of a common political 
 history, and especially of common struggles against foreign 
 foes, have a tendency to cause the community of patriotic 
 sentiment which the term " nation " implies : still, the 
 present imperfect cohesion of the Austro-Hungarian State 
 shows that this cause cannot be counted upon to produce 
 the required effect. In the case just mentioned differences 
 of language seem to have operated importantly against 
 cohesion : and indeed in most recent movements for the 
 formation of states upon a truly " national " basis whether 
 by aggregation or division community of language seems 
 to have been widely taken as a criterion of nationality : 
 still, it seems clear from the cases of Switzerland on the 
 one hand and Ireland on the other, that community of 
 language and community of national sentiment are not 
 necessarily connected. Again, at certain stages in the 
 history of civilisation, religious belief has been a powerful
 
 224 ELEMENTS OF POLITICS CHAP. 
 
 nation-making force, and powerful also to disintegrate 
 nations : but these stages seem to be now past in the 
 development of the leading West-European and American 
 States. I think, therefore, that what is really essential to 
 the modern conception of a State which is also a Nation 
 is merely that the persons composing it should have, 
 generally speaking, a consciousness of belonging to one 
 another, of being members of one body, over and above 
 what they derive from the mere fact of being under one 
 government ; so that, if their government were destroyed 
 by war or revolution, they would still tend to hold firmly 
 together. When they have this consciousness we regard 
 them as forming a " nation," whatever else they may lack : 
 thus we should speak without hesitation of the Swiss nation, 
 because we attribute to the Swiss this community of 
 patriotic sentiment, in spite of differences of language and 
 religion ; but we could not properly speak of the " Austrian 
 nation," whatever stability we may attribute to the Austrian 
 or rather Austro-Hungarian State : because we do not 
 conceive the members of this State as united into one whole 
 by any such esprit de corps. 
 
 The difference between " State " and " Nation " may be 
 illustrated further by the modern term " nationality," used 
 in a concrete sense, 1 to denote a group of human beings. 
 For by " a nationality " we usually mean a body of human 
 beings united by the kind of sentiment of unity or fellow- 
 citizenship that is required to constitute a nation, but not 
 possessing in common an independent government which 
 they alone permanently obey : being either divided among 
 several governments, or united under one government along 
 with persons of a different nationality. Under either of these 
 conditions, such a " nationality," in modern Europe, usually 
 desires and if occasion offers, strives to become a nation ; 
 but not always, as the persons composing it may think 
 themselves unable to maintain their independence alone as 
 is the case (e.g.} with the Magyars in the Austro-Hungarian 
 State. Still, even in such cases as this latter, the persons 
 
 1 The word is also used abstractly to mean "membership of a nation."
 
 xiv AREA OF GOVERNMENT STATES AND DISTRICTS 225 
 
 belonging to the nationality are conscious of a certain 
 artificiality in the composition of the larger political whole 
 of which the nationality forms a part. 
 
 3. According, then, to what I have called the "practical 
 ideal " of modern Europe, it is held to be desirable that a 
 State should be coextensive with a single nation, in the 
 sense above explained. It does not follow that, when this 
 is not the case, any portion of a State may claim the right 
 to secede and form a separate political community, or join 
 an existing foreign State. How far, and under what con- 
 ditions, this claim is to be admitted is a disputed question ; 
 to which we shall have occasion to return after discussing 
 the structure of government and its constitutional relations 
 to the governed. 1 But a provisional answer to this question 
 seems to be here required, before we pass to consider the 
 normal external relations of States. 
 
 We may begin by observing that though the right of 
 expatriation is not formally conceded by modern govern- 
 ments generally to their subjects, 2 there seems to be no 
 practical disagreement as to the expediency of allowing dis- 
 contented members of a State to sever themselves from it, if 
 at the same time they permanently quit its territory ; at 
 any rate, if their departure does not involve the violation of 
 any special or temporary obligations to the State or to 
 individuals. Suppose, for instance, that any number of 
 Collectivists wished to leave any West-European State, in 
 order to try the experiment of Collectivism on hitherto 
 unoccupied lands in Africa, I conceive that no serious opposi- 
 tion would be made to their collective expatriation ; except 
 that in a State that had established compulsory military 
 service, their departure might have to be deferred until their 
 respective terms of service had been completed. Speaking 
 broadly, then, we may say that the practically serious issue 
 as to the "Eight of Disruption" relates not to the mere 
 
 1 See Chap. XXXI. 8. 
 
 a In 1868, an Act was passed in the United States affirming that "the 
 right of expatriation is a natural and inherent right of all people " ; but I do 
 not think that any European Government has ever expressly admitted this 
 or any equivalent proposition. 
 
 Q
 
 226 ELEMENTS OF POLITICS CHAP. 
 
 secession of a group of the members of a State, but to their 
 secession with a portion of the State's territory. On the 
 other side, few would contend that any landowner should 
 have a right to secede with his land from the State to 
 which he belongs : or that any number of such landowners, 
 scattered through the territory of a State, but not forming 
 with other would-be seceders a local majority in any 
 considerable district, should have a right to secede and 
 form a new political community, exercising dominion 
 over this aggregate of fragmentary lands. Any such claim 
 is excluded from serious discussion by the palpable and 
 extreme inconvenience that its realisation would obviously 
 cause. 
 
 The main issue, therefore, as to the Right of Disruption 
 may be thus defined : If in any continuous part of the 
 territory of a State, sufficiently large to form the territory 
 of a new independent State, or capable of being conveniently 
 united to an existing State, there is a decided local majority 
 in favour of separation, has this majority a legitimate claim 
 to secede, carrying with them the portion of territory over 
 which their secessionist majority extends ? It seems clear 
 that a claim of this breadth would not be generally 
 admitted, merely on the ground that the interests of the 
 seceders would be promoted or their sentiments of nation- 
 ality gratified by the change : that some serious oppression 
 or misgovernment of the seceders by the rest of the com- 
 munity, i.e. some unjust sacrifice or grossly incompetent 
 management of their interests, or some persistent and harsh 
 opposition to their legitimate desires, would be usually 
 held necessary to justify the claim. If no adequate justifica- 
 tion of this kind appeared, the forcible suppression of any 
 such attempt at disruption would be approved by the 
 majority of thoughtful persons. 
 
 In examining the grounds of this view, we may put 
 aside as antiquated the survivals of the medieval conceptions 
 of government, which, until recent times, caused certain royal 
 families to be widely regarded as having quasi-private rights 
 of ownership over certain territories and indefeasible claims
 
 xiv AREA OF GOVERNMENT STATES AND DISTRICTS 227 
 
 to the allegiance of their inhabitants. Notions and senti- 
 ments of this kind have not ceased to have some force ; but 
 their influence is comparatively feeble and on the whole 
 steadily diminishing : and in a general discussion of the 
 question they may be disregarded. I shall also defer for 
 the present the question of the right to repudiate the results 
 of unjust conquest, which will come under our consideration 
 in the course of the two following chapters. 
 
 Putting aside the rights and wrongs of conquest, I con- 
 ceive that both the strength of the resistance that would 
 be made to disruptive movements by a modern State, 
 of which the American Civil War (1861-5) gave a strik- 
 ing example, and the general approval that would be 
 given to such resistance, depend largely on the degree of 
 disturbance that the disruption would cause in the foreign 
 relations of the disrupted State ; either through the in- 
 creased danger of war from the addition of the seceding com- 
 munity to the number of possible foes, or from the mere 
 loss of strength and prestige. Thus the intensity of the 
 aversion felt by the Northern States of the American union 
 to the secession of the Southern States seems to have been 
 mainly due to the fear of future hostilities between North 
 and South, complicated by the intervention of European 
 powers : and it is difficult to deny that the present hopeful 
 prospect which secession would have destroyed of 
 maintaining internal peace over the whole vast tract of 
 territory held by the United States, was worth a considerable 
 sacrifice of lives and wealth. 
 
 In most cases, a further strong argument against disrup- 
 tion would arise from the inevitable incompleteness of the 
 local separation between the seceders and the rest of the 
 community : the territory which secession would break off 
 would usually contain a minority of inhabitants loyal to the 
 old government, who would be likely to suffer seriously 
 from the change whether they remained within the disrupted 
 district or migrated from it. Hence a tranquil acceptance 
 of the disruption could not fail to have partially the 
 character of a weak and base abandonment of friends. The
 
 228 ELEMENTS OF POLITICS CHAP. 
 
 loss of Schleswig-Holstein would have been less strongly 
 resisted by Denmark in 1864, had there been no considerable 
 number of loyal Danes in North Schleswig ; on the other 
 hand, if the Danes in North Schleswig had been sharply 
 and clearly separated from the Germans, we may presume 
 that less resistance would have been made on the German 
 side to a separation of Schleswig into a Danish and a 
 German part, and a union of the former with Denmark. 
 
 Other minor disadvantages of disruption would vary in 
 nature and extent in different cases. The loss of the dis- 
 rupted district might be specially serious, from its contain- 
 ing mines or other natural resources, in which the rest of 
 the State's territory was deficient. Again, the burden of a 
 national debt might be seriously increased by the diminu- 
 tion of the wealth and population consequent on the dis- 
 ruption : and though the payment of a proportionate share 
 of the debt might of course be demanded from the seceders, 
 it might be difficult and costly to enforce the demand : 
 indeed the desire of avoiding this share of the burden of 
 debt might conceivably have been an illegitimate motive to 
 secession. 
 
 But over and above these calculations of expediency, 
 justifying resistance to disruption, we must recognise as a 
 powerful motive the dislike of the community from which 
 secession is proposed to lose territory that has once belonged 
 to it, and to which it has a claim recognised by foreigners. 
 This sentiment so far as it goes beyond a rational aversion 
 to lose a source of wealth and of strength in international 
 conflicts seems an outgrowth of patriotism analogous to 
 the strong feelings of attachment to land or other property 
 which long and undisturbed private ownership tends to 
 produce in individuals and families. According to the 
 fundamental principle adopted in the present work, this 
 territorial sentiment should doubtless be overridden, when it 
 prompts to conduct clearly opposed to the common interests 
 of the persons affected by it. But this is equally true of 
 the feelings of mistrust or dislike of persons of different 
 speech, customs, or religion, which operate in favour of dis-
 
 xiv AREA OF GOVERNMENT STATES AND DISTRICTS 229 
 
 ruption : l both kinds of sentiment have, however, to be taken 
 into account in any practical consideration of a political 
 movement tending to disruption ; and the former must be 
 recognised as an important force, operating in favour of 
 existing divisions. Such feelings are intensified by the 
 close connection established in current thought between 
 political societies and their territories : in consequence of 
 which the characteristics of the territory inhabited by the 
 nation commonly occupy a prominent place in appeals to 
 national sentiment. Our imagination seems to require this 
 embodiment to constitute an adequate object of patriotic 
 devotion ; so that in thinking of the " sea-girt isle " of 
 Britain, or "la belle France," we do not ordinarily separate 
 the community from the land, but blend the two into one 
 notion. 2 
 
 4. As I have already explained, I think it premature 
 here to attempt a final solution of the problem presented 
 by the conflict of sentiments and interests which I have 
 indicated in the preceding section : my present aim is merely 
 to justify a provisional acceptance of the assumption that a 
 modern State is normally a determinate and stable group 
 of human beings, whose government has a practically undis- 
 
 1 I may notice here what I shall have occasion to consider more fully 
 hereafter the distinctly lower degree of aversion with which disruption is 
 usually regarded if the territories which it is proposed to separate politically 
 are physically divided by a considerable interval. This is partly because the 
 State formed by the union of these divided territories is prima facie less suit- 
 able for common government, from the greater difficulty of communication 
 among its parts and of defence against external foes : but the effect of 
 imagination in causing the union in this case to seem less "natural " must 
 not be overlooked. 
 
 2 To this close connection of the conception of a modern nation with that 
 of its territory we may partly attribute the idea that a nation has a right to 
 certain " natural boundaries," which has had an important influence on the 
 political movements of the present century. Such a right is manifestly 
 inadmissible, when urged as a reason for altering existing boundaries, in 
 defiance of the sentiments of the population inhabiting the limitary district 
 which it is proposed to transfer. But where this consideration is ambiguous 
 and balanced, there are strong grounds of general expediency to be urged in 
 favour of the claim in question : since a State that has natural boundaries 
 seas, rivers, or mountain ranges is thereby strengthened for defence in war, but 
 not equally for attack : and this is a condition that tends in favour of peace.
 
 230 ELEMENTS OF POLITICS CHAP. 
 
 puted right of regulating the legal relations of human 
 beings over a determinate portion of the earth's surface. 
 This assumption granted, we have now to consider how new 
 membership of such a society is to be acquired ? To attach 
 it to mere local habitation within the territory of the State 
 is obviously inexpedient : if a foreigner landing in England 
 or France at once became an Englishman or a Frenchman, 
 the inevitable result would be either to dissipate the senti- 
 ment of nationality which we have recognised the importance 
 of maintaining, or to hamper intolerably the intercourse be- 
 tween nations. Hence, in all modern States, the distinction 
 between members, and aliens residing within the territory, is 
 maintained ; and it is agreed that application of the law of 
 a State to resident or travelling aliens should be limited to 
 those matters in which the admission of diversity of laws 
 would be dangerous or seriously inconvenient to its members. 
 How, then, is membership of a political society to l)e 
 determined, if mere local habitation is not sufficient to 
 determine it? There are two obvious alternatives, (1) 
 Birth, and (2) Consent : and the first subdivides again into 
 two, according as " birth " is understood to mean either 
 " birth from parents who are members " or " birth within 
 the territory." The decision in favour of any one of the 
 three principles is, however, of minor importance : because 
 ordinarily all these characteristics are found in combina- 
 tion. Ever since political societies have existed, the quality 
 of membership has been handed down from parents to 
 children, along with the common language, customs, and 
 traditions that constitute the normal bonds of national unity : 
 thus in any modern country the great majority of the inhabit- 
 ants born from native parents and on the soil have been 
 regarded as inchoate members from their birth, and as they 
 have grown up have assumed the rights and obligations of 
 full membership, without any formal act of consent. With 
 regard, then, to this great majority, it would be superfluous 
 and disturbing to admit any doubt as to their membership, 
 so long as they remain within the territorial limits of the 
 state ; the only question practically important apart from
 
 xiv AREA OF GOVERNMENT S7^ATES AND DISTRICTS 231 
 
 revolutionary changes, tending to the formation of new 
 States is whether they should be free to leave the com- 
 munity. On this point, as I have already said, the principle 
 of Consent has so far prevailed that freedom of emigration is 
 now practically universal in modern civilised communities : 
 and it seems clear that any substantial and permanent 
 restrictions on such freedom would be out of harmony with 
 the ruling political ideas of these communities. National 
 sentiment, indeed, would condemn any one who left his 
 " country " in a crisis in which she had need of his devotion : 
 but it is clear that, in ordinary times, a State framed on a 
 mainly individualistic basis, and therefore not undertaking to 
 secure its members subsistence at least beyond a minimum 
 given under deterrent conditions could not consistently 
 keep them from seeking their livelihood elsewhere. We may 
 lay down, then, that expatriation is to be free, and renuncia- 
 tion of citizenship, with certain restrictions to prevent 
 the evasion of special or temporary obligations, but on 
 condition of leaving the country. So far as I know, it has 
 never been even proposed that individual members of a 
 State should be allowed to renounce citizenship while 
 remaining within its territorial limits ; but in most countries 
 it is possible for a citizen to expatriate himself, acquire a 
 new nationality, and then return to live in his native land 
 as a resident alien. It is, however, clearly inexpedient for 
 a State that this course should be extensively adopted, in 
 order to escape the burdens of citizenship ; and, if it were 
 extensively adopted, some measures would doubtless be taken 
 to redress the balance between the burdens and privileges 
 of citizenship, and to make the position of a resident alien 
 clearly less desirable than that of citizen. 
 
 We are thus led to consider the conditions under which 
 aliens generally should be admitted to (1) residence and (2) 
 citizenship : but the former question cannot well be separated 
 from the discussion of the external relations of States, to 
 which I shall proceed in the next chapter. 1 Here, then, I 
 
 1 The question of restraints on immigration will be discussed in Chap. 
 XVIII. 3.
 
 232 ELEMENTS OF POLITICS CHAP. 
 
 shall only point out that the residence of a large number of 
 persons permanently excluded from citizenship within the 
 territory of any community involves an obvious danger of 
 weakening the internal coherence of the community. 
 Accordingly, if a State permits the free immigration of 
 foreigners, it seems expedient that admission to citizenship 
 should be generally open to those resident aliens: pro- 
 vided they have, by sufficiently long, orderly, and un- 
 blemished residence within its territory, both shown a 
 settled preference for the social order that it maintains, and 
 acquired a sufficient acquaintance with its laws and political 
 habits to render it fairly probable that they will adequately 
 perform the duties of citizenship. 
 
 It remains to settle the minor point, whether parentage 
 or soil is to decide citizenship, in the case of children born 
 in the territory of a state other than that of which their 
 parents are members. This question also belongs to the 
 discussion of the external relations of States, so far as it is 
 a matter on which agreement is desirable between the two 
 States whose members and territories are respectively con- 
 cerned. Considering it here from the point of view of the 
 State in whose territory the birth takes place, we may lay 
 down that as it is obviously undesirable, other things being 
 equal, that either State should have unwilling members the 
 children of resident aliens should be allowed to choose their 
 nationality when they come to years of discretion ; so long 
 at least as there is no need of discouraging the residence 
 of aliens on account of their numbers. For the sake of 
 domestic harmony it seems best that the nationality of a 
 married woman should be merged in that of her husband ; 
 so that divided parentage will only occur in the case of 
 illegitimate children, and it is comparatively unimportant 
 how its effect on nationality is decided. 
 
 5. I now pass to the second of the two fundamental 
 questions announced at the outset of this chapter: viz., 
 How far, within the limits of the modern country assum- 
 ing these determined in the manner which we have just 
 been examining governmental functions should be exer-
 
 xiv AREA OF GOVERNMENT STATES AND DISTRICTS 233 
 
 cised over more restricted areas than that of the whole 
 country ? 
 
 So far as this question relates to the organisation of local 
 governments, and the distribution of functions between local 
 and central organs, its consideration more properly belongs 
 to the second part of the treatise. What I propose here 
 briefly to consider is not the organisation of government, 
 but how far it is desirable that the effects produced by 
 governmental action should vary from district to district, 
 within the limits of the same State ; apart from any 
 constitutional considerations that may render it expedient 
 to maintain local independence. We might put the question 
 thus : Assuming any part of the human race, inhabiting 
 any tolerably extensive portion of the earth's surface, to be 
 under one wise government however organised ; how far 
 would the laws, and the general rules of governmental 
 action within the limits laid down by law, be the same for 
 all ? This is obviously desirable so far as human beings 
 and their circumstances are similar ; but we know from 
 experience of very important differences in men's physical, 
 moral, and intellectual characteristics especially when we 
 compare men at different stages of civilisation which may 
 rationally determine a judicious government to act differently 
 in their regard. The consideration, however, of such differ- 
 ences as these, and of the variations in the functions and 
 structure of government that may fitly correspond to them, 
 lies for the most part beyond the scope of the present work ; 
 since our attention is here primarily directed to the political 
 relations generally suitable to the members of modern 
 civilised communities. Now in such communities the poli- 
 tically important differences that we find in groups of 
 individuals inhabiting different local divisions are, in most 
 cases, connected with differences, historically caused, in the 
 structure of their societies : different parts of a now united 
 society have been previously under different governments, 
 more or less independent ; so that, when the question we 
 are now considering is practically raised with respect to 
 them, they not only have actually systems of law more
 
 234 ELEMENTS OF POLITICS CHAP. 
 
 or less divergent, but also their habits, customs, senti- 
 ments, expectations, are more or less firmly adjusted 
 to these different systems. We cannot lay down any 
 precise rules for determining when and how far such 
 local divergences in law should be maintained, and when 
 they should be obliterated : but the following appear 
 to be the chief general considerations for deciding such 
 questions : 
 
 First, on the side of conservation we have (1) the 
 general probability that a system of law which is the result 
 of a gradual process of social development will have been 
 adapted to the average needs, dispositions, and habits of the 
 members of the society in which it is found ; (2) the wide- 
 spread friction caused by new laws jarring with old customs 
 and habits ; and (3) the more serious hardship in particular 
 cases due to the disappointment of expectations naturally 
 generated by the older condition of law and custom. On 
 the other hand, the introduction of uniformity apart from 
 its economic advantages in simplifying the work of adminis- 
 tration tends to prevent the trouble and occasional dis- 
 appointment that are liable to arise from transactions 
 between inhabitants of different districts having different 
 laws : and it is to be observed that the inconveniences thus 
 prevented are of a kind that tend normally to increase as 
 time goes on, with the increasing mutual communication 
 and interfusion of the different portions of the community. 
 The resulting mischief is likely to be much more serious 
 in some departments of law than in others. Thus it is 
 likely to be comparatively trifling in the case of the laws 
 relating to the tenure of land : in which, at the same time, 
 the considerations in favour of maintaining local divergences 
 are likely to be specially strong. On the other hand, varia- 
 tion will probably be specially detrimental in the case of 
 commercial law, from the tendency of commercial relations 
 to extend beyond the limits of a single district : and also 
 in the law relating to domestic conditions, since the institu- 
 tion of the family is normally protected as we have before 
 observed by strong moral sentiments, which are liable to
 
 xiv AREA OF GOVERNMENT STATES AND DISTRICTS 235 
 
 be at once offended and weakened by the collisions between 
 discordant rules. 1 
 
 Let us now turn to consider briefly the variations in 
 law and in other forms of governmental action, which 
 may be rationally grounded on differences not in the nature 
 of men or the structure of societies, but in their physical 
 environment. Some departments of law scarcely admit of 
 variation on this ground ; thus (e.g.) the regulation of the 
 family and the conditions under which it is expedient to 
 enforce contract are not likely to vary with variations in 
 the physical circumstances of different societies : and the 
 protection of person and reputation from injury intentionally 
 inflicted will be equally required everywhere. There are 
 more likely to be important differences required in the 
 governmental interference which I have distinguished as 
 " indirectly individualistic " ; especially owing to the peculiar 
 dangers of mutual mischief which arise under urban as con- 
 trasted with rural conditions, from the closer packing of 
 human beings. Thus sanitary regulations are likely to be 
 different in town and country respectively : it has even 
 been said that " each town has its own drainage problem." 
 Similarly, the protection against the introduction of diseases 
 from abroad will require regulations on the borders of a 
 country which will not be necessary in inland districts. 
 Again, we have seen that the general principle of securing 
 to each individual the fullest possible opportunity to employ 
 
 1 As an American writer says, speaking from experience : ' ' Diversity 
 of commercial rules in the several States impedes and annoys business, for 
 American business pays little heed to State lines. Conflicting laws of 
 marriage and divorce unsettle family relations, and undermine the moral 
 basis of society. ... It is possible that a man married in New York, 
 divorced and re-married in Indiana, shall be the lawful husband of one 
 woman in Indiana, and shall be regarded by the law of New York as the 
 husband of another. By the law of Indiana his status is completely 
 regular ; by the law of New York he is a bigamist. He may have a second 
 family of children who, by the law of Indiana, are legitimate, but by the law 
 of New York are bastards." (Prof. Munroe Smith, on "State Statute, and 
 Common Law " in the Political Science Quarterly for March 1888.) It is in 
 the part of the marriage-law that relates to the conditions of divorce, and of 
 the re-marriage of divorced persons, that variation is specially mischievous.
 
 ELEMENTS OF POLITICS CHAP, xiv 
 
 his labour and undisturbed enjoyment of its results, has to 
 be carried out differently in relation to different kinds of 
 natural utilities : for instance, special regulations are likely 
 to be necessary for mines, for fisheries, for forests; and 
 these, by the nature of the case, are likely to be applicable 
 to certain districts in the country and not to others. For 
 similar reasons special kinds of the interference that we 
 have called in a wide sense socialistic, may be only 
 required in special localities : as (e.g.} for the draining of a 
 marshy district, or for the irrigation of one deficient in 
 water, or for the protection of low -lying lands against 
 floods, or for the more elaborate provision of water for 
 household use, which urban conditions render desirable. 
 
 In these various ways an important amount of differen- 
 tiation in the work of government comes to be recognised 
 as needful. To what extent the structure of government 
 should be modified to meet this need is an important ques- 
 tion which we shall consider in a later chapter (XXV.).
 
 CHAPTEK XV 
 
 PRINCIPLES OF INTERNATIONAL DUTY 
 
 1. I NOW pass to consider that part of the work of 
 Government which is primarily external ; l that is, which 
 has for its end the maintenance of proper relations between 
 the community governed and other communities and indi- 
 viduals outside it. 
 
 Assuming the existence of a group of independent States, 
 approximately on the same level of civilisation, among whom 
 a large part of the surface of the globe is divided up the 
 rest being either sea or in the possession of uncivilised or 
 more imperfectly civilised peoples, what general rules can 
 be laid down for the conduct of the governments of such 
 States in their dealings with foreigners ? 
 
 Here, firstly, any one who begins to reflect on the 
 accepted premises of political reasonings in such matters 
 finds on the one hand a distinction between Kules of 
 
 1 As we have already seen (Chap. XL), the existence of these external 
 relations, in anything like their present form, must have very important 
 effects on the internal relations of the community. Even in ordinary times, 
 in most European States, the taxation required for the purpose of protecting 
 the community and its interests against the attacks of external enemies 
 exceeds that required for all its internal functions taken together ; while in 
 critical emergencies of war a government is commonly held to have a right 
 to demand from the governed far more severe sacrifices, and even the most 
 perilous personal services. Further, an important part of the duty of any 
 government towards foreigners is to exercise adequate care in preventing its 
 own subjects or other persons under its control from doing mischief to its 
 neighbours. In short, the functions of government that are primarily 
 external have in various important ways an internal aspect, which can 
 never be altogether excluded as the discussion that follows will show. 
 
 237
 
 238 ELEMENTS OF POLITICS CHAP. 
 
 International Law and Maxims of Foreign Policy ; and on 
 the other hand he finds, almost equally current, a criticism 
 of this distinction, on the ground that no code of rules 
 applied to the action of independent states can properly 
 be called " law." And certainly such rules lack the charac- 
 teristics that we have noted as belonging to the law that 
 regulates the internal relations of States. A group of 
 independent States has no supreme judicature, by which 
 any controversy as to the precise rules of international 
 conduct actually established can be decisively settled : no 
 common legislature, whose determinations in respect of new 
 rules are habitually obeyed by the majority of such States : 
 and no central executive able to crush any recalcitrant 
 nation with irresistible force. Under these circumstances 
 it may reasonably be questioned how far the distinction 
 between " legal " and " moral " rules and sanctions which 
 is of so great and pervading importance in the regulation of 
 civil relations within a community can be consistently or 
 usefully applied to international relations. This question, 
 however, it seems best to defer until we have reached a 
 fuller view of the system of rules of international conduct 
 for which it is desirable to obtain and not unreasonable to 
 hope general acceptance, and of the sanctions applicable in 
 support of such rules. In the meantime, the fundamental 
 distinction which I shall take will be between (1) Eules or 
 Principles of International Duty, and (2) Maxims of 
 National Policy within the limits defined by duty. In 
 discussing the former I shall avoid applying the term 
 " legal " at all to the mutual claims of States ; but it will 
 be sometimes necessary to distinguish " strict " duties, the 
 violations of which are to be regarded as wrongs justifying 
 war in the last resort if reparation is obstinately refused, 
 from merely unkind or unfriendly acts or omissions, which 
 are to be regarded as only justifying retaliatory unfriendli- 
 ness and general disapprobation, but not breaches of inter- 
 national peace. 
 
 The relation between rules of international duty 
 whether " legal," or only " moral " and maxims of policy
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 239 
 
 will correspond broadly to the relation between rules of 
 duty and maxims of prudence, as applied in practical 
 reasonings on matters of private conduct : and accordingly 
 the rules of international duty will be understood to be 
 determined with a view to the common interests of the 
 whole group of States ; whereas in framing maxims of 
 policy we shall primarily consider the interests of a single 
 State, supposed to be pursuing its own ends within the 
 limits fixed by international duty. It will therefore be 
 obviously proper to investigate first the principles of duty, 
 reserving the maxims of policy for subsequent discussion. 1 
 
 But before we proceed to the first investigation, it will 
 be well to face a fundamental difficulty, that may naturally 
 suggest itself as we pass from the discussion of the principles 
 of internal legislation and administration, which has so far 
 occupied our main attention. So far as this discussion 
 went, the mode in which practical application was to be 
 given to the conclusions of theory was obvious and unmis- 
 takable. Whatever principles of internal legislation have 
 been determined after full consideration to be best ought 
 to be applied by the legislature of each State ; of course 
 with due regard to its particular circumstances and condi- 
 tions, to the evils of great and sudden change, and to the 
 limits of varying elasticity fixed by the opinions, customs, 
 and traditions of the society. There is, in a well-ordered 
 society, a habit of unhesitating obedience to law, on which 
 the legislators may generally rely, so long as they are 
 careful not to transgress the limits just indicated. But 
 when we turn to principles of international conduct, we 
 find the case different. Even if all States were agreed on 
 the rules which it is the common interest of all to have 
 generally observed, this would not necessarily 2 make it the 
 
 1 See Chap. XVIII. 
 
 2 I do not of course mean to imply that it can never be the duty of a 
 nation to carry out, even at some sacrifice, a higher morality than its 
 neighbours : only that this duty must be taken to be relative to and 
 dependent on the degree of risk involved and the degree of probability that 
 the example set will contribute to bring about a better state of things. I 
 may observe that the same principle is applicable to private morality also,
 
 240 ELEMENTS OF POLITICS CHAP. 
 
 clear duty of any one nation to observe them, when the 
 primary effect of such observance would entail a material 
 sacrifice of national interests, unless there is a reasonable 
 prospect that the rules in question will be observed by 
 other States in similar circumstances. And the difficulty 
 of relying on this reciprocity, in a grave conflict of interests 
 and passions, is so manifest that it led Hobbes to enunciate 
 the famous paradox that in the relations of independent 
 nations (or individuals) "right and wrong, justice and 
 injustice have no place." It is true that this paradox 
 in the extreme form in which Hobbes stated it is con- 
 tradicted by experience. There are accepted rules of inter- 
 national duty, and the pursuit of national self-interest is 
 restrained by them, imperfectly, no doubt, but still to an 
 important extent. Still, it may be urged that though 
 independent nations and their governments are actually 
 restrained by international usages and precedents, it does 
 not follow that they will be affected by a theorist's exposi- 
 tion of principles : this, at any rate, it may be thought, 
 must be a mere demonstration in the air, without any 
 practical effect. 
 
 The answer is twofold. In the first place, usages and 
 precedents are often doubtful and ambiguous : and when 
 this is the case, reference is naturally and inevitably made 
 to the principles supposed to underlie the accepted rules : 
 and it is the special business of the theorist to state these 
 principles with clearness and precision. Secondly, whether 
 International Law is more similar to law proper or to 
 positive morality, there can be no doubt that it undergoes 
 change in details from time to time : l and these changes 
 
 though to a much more limited extent. As Mr. Spencer says (Pri'iiciples of 
 Ethics, Part I., chap. xv. p. 106): "ideal conduct is not possible for the 
 ideal man in the midst of men otherwise constituted. . . . Among people 
 who are treacherous and utterly without scruple, entire truthfulness and 
 openness must bring ruin ... a mode of action entirely alien to the pre- 
 vailing modes of action cannot be successfully persisted in must eventuate 
 in death of self, or posterity, or both." 
 
 1 The precise manner in which these changes are brought about will be 
 considered hereafter (see Chap. XVII. 4).
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 241 
 
 are likely to be more beneficial in their effects, the more 
 the rational principles on which they ought to be based 
 can be made clear and obtain general acceptance. 
 
 Nor does it seem difficult to determine the required 
 rational basis : since the two lines of reasoning which 
 naturally suggest themselves for determining it, in accord- 
 ance with the plan so far pursued, will lead to the same 
 general result. 
 
 In the first place, the natural aims and purposes of 
 independent groups of men, in relation to their physical 
 environment and to each other, and their possible mutual 
 conflicts, have obviously a broad and general similarity to 
 those of individual human beings. The analogy does not, 
 indeed, hold altogether : the unity of the most orderly and 
 harmonious political community is never so complete as the 
 unity of an individual man : and, in fact, as we shall 
 presently see, the incompleteness of the unity of States is a 
 main source of the special problems presented by inter- 
 national relations. Still, the analogy is sufficiently strong 
 to render it reasonable to consider how far the accepted 
 principles of civil order within a normal modern community 
 are applicable to a society of independent States. 
 
 Now it will be at once evident that the absence of a 
 supreme supervising government excludes the application of 
 " paternal " interference, except of a kind that would be 
 unhesitatingly rejected in the civil relations of sane adults. 
 No one would propose that a single private individual, or 
 voluntary combination of private individuals, should be 
 empowered except under the strictest governmental super- 
 vision to interfere with another sane adult for that other's 
 good ; the danger of such control being exercised in the 
 interest of the protecting individual or group would be 
 thought to outweigh any possible advantage to the person 
 controlled. And a similar danger renders this kind of 
 quasi-paternal control generally inexpedient in the case of 
 States, at least if they are at all equal in grade of civilisa- 
 tion, and sufficiently coherent internally to be regarded as 
 united wholes. It may, indeed, be sometimes advantageous 
 
 R
 
 242 ELEMENTS OF POLITICS CHAP. 
 
 for a weak State to be placed under the protection of a 
 group of its neighbours, through whose mutual jealousies it 
 may thus secure greater practical freedom from interference 
 than if it were left in nominally complete independence : 
 but this is hardly analogous to what we have called 
 " paternal " interference. Again, a semi-civilised State 
 may sometimes gain more than it loses by being brought 
 into a condition of semi-dependence on a more civilised 
 neighbour ; but in the historical instances in which this 
 relation has been established it has usually been by a self- 
 interested encroachment of the protecting State, acquiesced 
 in, rather than approved by, other nations ; and the general 
 conditions of its legitimacy can hardly be distinguished from 
 the conditions of legitimate conquest. 
 
 Socialistic interference, again, seems almost out of the 
 question in international relations, for the simple reason that 
 so long as the concert of nations is ineffectual to prevent 
 any one nation from doing mischief to another and the 
 continual frequency of wars shows that it is ineffectual 
 it would be futile to try to use it for the harder task of 
 compelling mutual positive services. States have, indeed, 
 combined in various ways for instance, by international 
 postal arrangements for the promotion of their common 
 interests ; and it is eminently desirable that they should so 
 combine. But, at least among States on an equality and 
 sharing the same civilisation, common action of this kind 
 has always been effected by voluntary combination ; and I 
 conceive that this must continue to be the case until 
 the reign of peace among independent nations is finally 
 established. 
 
 We are left, therefore, with the principle of mutual non- 
 interference interpreted as including fulfilment of contracts 
 and reparation for wrong done as the principle exclusively 
 applicable to the obligatory relations of civilised States. 
 And historically this has been in the main the accepted 
 principle of what has been known in modern times as 
 International Law so far as it has been conceived to be 
 determined on rational grounds, and not by mere usage
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 243 
 
 or convention. When the real, though imperfect regulative 
 influence that had previously been exercised over Western 
 Europe by the unity of Christendom had finally collapsed 
 in the religious wars of the sixteenth century, the need of 
 establishing, on independent principles, a system of rules 
 for the conduct of nations was strongly felt ; and the void 
 was supplied by the conception of the Law of Nature, which 
 had been gradually formed in the development of mediaeval 
 thought, partly by tradition from Cicero through Augustine, 
 and partly from the revived study of Roman Jurisprudence. 
 According to this conception individuals or at least heads 
 of families had lived before the formation of political 
 societies, and would always live, apart from positive law, 
 in a " natural " society, under a system of rights and 
 obligations based mainly on the principle of mutual non- 
 interference, as above defined. It seemed clear that nations 
 having no common government must be members of such 
 a " natural " society ; and, accordingly, the jurists of the 
 sixteenth and seventeenth centuries, especially Grotius, tried 
 to systematise and complete on the basis of this Law of 
 Nature the body of rules governing international relations 
 that had gradually come to be accepted. The system thus 
 framed commended itself to thoughtful persons generally in 
 the seventeenth and succeeding centuries ; indeed, Maine 
 speaks of the " rapid, complete, and universal success " of 
 Grotius's treatise De Jure Belli et Pacis, as a " great marvel." 
 And though the actual conduct of European States in 
 these centuries has often deviated very widely from the 
 recognised ideal of international duty, still the influence of 
 this ideal has been sufficient to make it practically useful to 
 work out in detail the application of the principle of mutual 
 non-interference to international relations. Indeed, if this 
 principle were discarded, it would be hard to find any other 
 to which appeal could be made, on any question of inter- 
 national duty not decisively determined by precedents. 
 
 Before entering on this task it seems desirable to define 
 more closely the sphere of application of the rules that 
 we are about to lay down. I have already said that their
 
 244 ELEMENTS OF POLITICS CHAP. 
 
 observance cannot be regarded as strictly binding on States 
 except in their dealings with other communities from 
 whom reciprocal observance may reasonably be expected. 
 But, in applying this maxim, a distinction has to be drawn 
 between the general principles of abstinence from aggression 
 and observance of compact, applicable, as we have just 
 seen, to the relations of individuals no less than to those 
 of communities and the detailed rules of international 
 conduct, inevitably in some degree arbitrary, which have 
 been accepted as the best attainable expression of these 
 principles by the civilised States of Europe, and those of 
 European origin in America. It would be unreasonable 
 to expect exact observance of these particular rules or of 
 any other particular rules which this group of States may 
 hereafter accept from even civilised States outside the 
 circle of European civilisation, unless such States have in 
 some unmistakable manner sought and obtained admission 
 into the European state-system. But the general principles 
 on which these rules are avowedly based, are of much wider 
 application. There seems to be no class of societies 
 civilised, semi-civilised, or savage in dealing with which 
 a civilised State can be exempted from the obligation to 
 observe these principles, unless it has adequate grounds for 
 expecting that they will be violated on the other side : 
 though the precise forms of behaviour in which the general 
 intention of avoiding injury to other communities will be 
 most fitly expressed, will of course vary with the customs of 
 these communities. In dealing, however, with uncivilised or 
 semi-civilised communities difficult questions arise as to the 
 interpretation of the duty of abstinence from aggression, and 
 the manner in which it is to be reconciled with the legitimate 
 claim of civilised communities to expand into unoccupied 
 territory, and their alleged right or even duty of spread- 
 ing their higher type of social existence. The consideration 
 of these difficulties I reserve for a subsequent chapter 
 (XVIII.): in the present and the following chapter our 
 attention will be mainly confined to the rules of mutual duty 
 which it is desirable to maintain among civilised States.
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 245 
 
 It appears from what has been said that the main heads 
 of international duty will coincide broadly with what we 
 have taken to be the main heads of civil jurisprudence. 
 We shall regard it as the primary duty of a State to abstain 
 from injuring any other State or its members (1) directly, 
 or (2) by interference with rights of property, or (3) by 
 non-performance of contract ; and these three rules of duty, 
 viewed in another aspect, will constitute the primary inter- 
 national rights. But under all these heads important 
 differences are to be noted, in the application of these prin- 
 ciples to the relations of States. These differences arise 
 chiefly from the following causes : (1) the incomplete 
 definiteness of States as compared with individuals; (2) 
 their incomplete coherence, especially the complication 
 introduced by the difference and possible conflict between 
 the actions of a government and those of the individuals 
 who owe it obedience ; (3) the difference between govern- 
 mental control of portions of the earth's surface and private 
 ownership of land ; (4) the impossibility of applying simply, 
 in international relations, the principle that coercion invali- 
 dates a contract. The last-mentioned difference is connected 
 with (5) the inevitable enlargement of the Eight of Self- 
 defence, in the case of independent nations, to a Eight of 
 War. For, carrying the analogy with civil rights further, 
 we see that if a primary international right is infringed, 
 the wronged State must be held to have a secondary right 
 to reparation ; and, if reparation is refused, or if the outrage 
 is gross and deliberate, the exercise of force must be held 
 to be legitimate for obtaining redress, and adequate security 
 against repetition of the outrage. But in the absence of a 
 common government of nations such exercise of force 
 ordinarily leads to war : and we thus have to consider the 
 bindingness of agreements imposed by the victor in a war 
 on the vanquished, and also to consider how far and in what 
 way the mutual relations of belligerents and neutrals can 
 be regulated so as to minimise the mischiefs of war. 
 
 I proceed to examine more closely each of these differ- 
 ences and its effects confining myself, for the present, as
 
 246 ELEMENTS OF POLITICS CHAP. 
 
 far as possible to the consideration of peaceful relations, and 
 leaving the regulation of war to the following chapter. 
 
 2. There are two ways in which the lines of separation 
 between States lack perfect definiteness ; firstly, there is no 
 clear and universally accepted determination of the criteria 
 of membership of a State ; and secondly, each State has 
 aliens residing in its territory and thus partially subject to 
 its laws, and also has some of its own members in a similar 
 relation to other States. As regards the first point, there 
 is of course no doubt that persons born within the territory 
 of a State of parents belonging to it or unknown parents 
 themselves belong to that State, unless their connection 
 with it has been severed by some act done by it or them, 
 designed to have this effect. But, owing to the extensive 
 interfusion of modern nations, there is a not inconsiderable 
 margin of doubtful cases, as to which different nations take 
 divergent views, and are liable to come into conflict. For 
 instance, European nations disagree somewhat as to the 
 national character properly belonging to children born out 
 of their parents' country. The older view to which Eng- 
 land still adheres in principle made the place of birth 
 decisive ; the newer rule, which since the Code Napoleon 
 has tended to prevail, makes the child follow the nationality 
 of its parents. It seems desirable l that liberty of choice 
 should be generally allowed in such cases ; but it is, I con- 
 ceive, in accordance with the principle of mutual non-inter- 
 ference that each State should have an unquestioned right 
 of determining the relation to itself of children born within 
 its territory ; all that can be demanded is that due warning 
 should be given to other nations of the laws laid down by it 
 on this subject. 
 
 A more important difficulty is presented by the question 
 whether the members of a community generally should have 
 unlimited liberty of severing their connection with it by 
 
 1 If it were found that this liberty gave too much encouragement to aliens, 
 it would seem to me better to counteract it by disabilities of some other kind, 
 rather than force on the children of resident aliens a nationality to which they 
 were averse.
 
 XV PRINCIPLES OF INTERNATIONAL DUTY 247 
 
 expatriation. In practice, as I have before said, free 
 emigration is now generally conceded by European States ; 
 but a universal and unlimited right of expatriation is not 
 yet generally admitted ; and it is easy to see that where 
 universal military service is compulsory it may be necessary 
 to prohibit temporary emigration, lest it should take place 
 widely with the view of evading military service. It would 
 probably be inexpedient, even in this case, to take any 
 measures to prevent such emigration, beyond the announce- 
 ment of a penalty to be inflicted if the evasive emigrant 
 returns ; but however this may be, I do not think that any 
 measures taken to prevent expatriation can, on the principle 
 of mutual non-interference, be regarded as an offence by 
 any other State, except so far as the persons whose expatria- 
 tion is prevented are already claimed as subjects by that 
 other State. On the other hand, it cannot be regarded as 
 an interference that a foreign State should admit such an 
 evasive emigrant to membership ; but it seems clear that 
 it cannot, consistently with our principle, claim to protect 
 him, if he returns to his native land, from the penalty 
 incurred by unlawful emigration. 
 
 In any case, we have to recognise that ordinary inter- 
 course brings political societies into a condition of partial 
 interfusion, to which the ordinary intercourse of indi- 
 vidual human beings offers no parallel ; in consequence 
 of which each modern State contains a number of aliens 
 residing temporarily or permanently within it. But on 
 the principle that limits strict duty to non-interference, 
 it must be competent for a State to prohibit this inter- 
 fusion totally or partially : and if (as is the common view) 
 we regard its rights over its territory as only limited by 
 the duty of avoiding mischief to other States according 
 to the analogy of private rights of property it must be 
 competent for it to exclude inhabitants of other States 
 altogether from its territory, without violation of duty. I 
 conceive that this exclusive territorial dominion must be 
 generally admitted with a certain reservation in the case 
 of States that claim the ownership of large tracts of un-
 
 248 ELEMENTS OF POLITICS CHAP. 
 
 occupied land owing to the inconveniences and dangers of 
 conflict that must generally attend any division or limita- 
 tion of dominion : and, if so, a State must obviously have 
 the right to admit aliens on its own terms, imposing any 
 conditions on entrance or any tolls on transit, and subject- 
 ing them to any legal restrictions or disabilities that it 
 may deem expedient. It ought not, indeed, having once 
 admitted them, to apply to them suddenly, and without 
 warning, a harsh differential treatment ; but as it may 
 legitimately exclude them altogether, it must have a right 
 to treat them in any way it thinks fit, after due warning 
 given and due time allowed for withdrawal. And if it 
 may deal thus with aliens, it must clearly have similar 
 rights in respect of its own alienated members. Doubtless 
 such exclusive or differential treatment unless justified as 
 a necessary precaution against mischief to the State adopt- 
 ing it is opposed to international morality as wantonly 
 unfriendly, and would justify retaliatory exclusion, or other 
 unfriendly acts, though not war. But it can hardly be 
 regarded as even unfriendly for a government to apply to 
 aliens within its territory the laws and administrative 
 measures that it applies to its own subjects, even if they do 
 not accord with the alien's view of justice. Thus a French- 
 man, holding land in Ireland, could not reasonably complain 
 of being judicially forced to give his tenants " fair " rents, 
 though he might reasonably complain if such a measure 
 were applied only to lands held by Frenchmen. If, however, 
 the laws of one nation (A) are designedly made, or de- 
 signedly administered, so as to cause special loss or annoy- 
 ance to the members of another nation (B) residing in the 
 territory of A, B has clearly a ground of complaint, and a 
 claim to reparation if the unequal treatment is applied 
 without warning. And even if such special loss or annoy- 
 ance resulted without design, complaint would not be 
 unreasonable ; but if such complaint had no effect, it would 
 not be in accordance with the principle of non-interference 
 for B to take ulterior hostile measures beyond breaking off 
 communication with A; and probably it would not be
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 249 
 
 expedient to do more than warn its subjects against 
 travelling or residing in A. 
 
 3. On the other hand, a State that has admitted aliens 
 is bound not only to abstain from injuring them through the 
 operations of its government, 1 but also to take due care to 
 prevent its members from injuring them, so long as they are 
 within its territory ; and, where prevention has failed, to 
 inflict punishment and provide reparation for any wrongs 
 that they may have suffered. And, similarly, it is at all 
 times the duty of a State to take reasonable care to prevent 
 the inception within its territory of acts injurious to other 
 States or their members intended to take effect outside its 
 territory. Nor can the extent of this obligation, I conceive, 
 depend on the internal constitution or condition of any 
 country, at least so far as the duty of reparation goes. 
 It may be admitted that a State is not " bound to alter the 
 form of polity under which it chooses to live, in order to give 
 the highest possible protection to the interests of foreign 
 States " ; 2 but if it prefers a polity that renders it more 
 dangerous to others, it must take the risk of having to 
 give more compensation for damage done to their interests. 
 Other nations, on the principle of mutual non-interference, 
 have no right to interfere with its constitution and laws, so 
 long as its foreign obligations are tolerably fulfilled ; but, 
 correspondingly, it has no right to make them an excuse for 
 non-fulfilment. 
 
 A precise general definition of " reasonable care " can 
 hardly be given ; but it may be laid down that " somewhat 
 more forethought in prevention of noxious acts is due during 
 war " or internal disturbance in neighbouring countries, than 
 in time of peace. 
 
 This duty of control, of course, extends to the case of the 
 
 1 If such injury has been inflicted through the agency of governmental 
 officials, their act should, of course, be disowned and compensation given ; 
 and, if the offence be grave, the official should be punished. 
 
 2 This quotation, and others in the present chapter, are from Mr. W. E. 
 Hall's International Law. I may here take the opportunity of acknowledging 
 my extensive obligation to this work, in composing the present and the 
 following chapters.
 
 250 ELEMENTS OF POLITICS CHAP. 
 
 aliens to whom a State gives hospitality. It must take 
 reasonable care to prevent them from doing mischief to its 
 neighbours. This duty becomes important through the 
 natural tendency of the law-breakers of any community 
 to fly to neighbouring countries to escape punishment. 
 Generally speaking, such law-breakers are likely to be mis- 
 chievous where they take refuge, and it is the common 
 interest of both the States concerned that they should be 
 handed over for trial and punishment in the country whose 
 laws they have broken. But there is likely to be some 
 margin of disagreement between two States as to the kinds 
 of acts that deserve punishment ; and we cannot say 
 broadly that every State is bound to accept any other 
 State's definition of crime, and hand over for punishment 
 persons whom it believes to be innocent. Its clear duty 
 is only not to facilitate in any way the performance of 
 future acts that it admits to be mischievous. It is, indeed, 
 conceivable that the mischief caused to a State by its neigh- 
 bour's encouragement to law-breakers may be sufficiently 
 grave to justify complaint, or even, in the last resort, forcible 
 suppression: but such serious results are hardly likely to 
 follow from any disagreement as to the definition of ordinary 
 crime, if the neighbour is a civilised State in which order is 
 tolerably maintained. 
 
 The chief practical difficulty arises in the case of what 
 are called " political " offenders that is, persons who have 
 violated the laws of their country by acts designed to effect 
 a change in its constitution. According to the principle of 
 non-interference no State should do anything calculated to 
 prevent (or cause) internal changes in another : and it would 
 seem that the surrender of political offenders is an interfer- 
 ence of this kind on behalf of the existing government. 
 It is, indeed, undeniable that such attempts, when made 
 without adequate cause or reasonable prospect of success, 
 may be mischievous in the highest degree : but a State 
 cannot generally be expected to undertake the responsibility 
 of deciding how far any particular attempt at a revolution 
 in a foreign State was justifiable. On the other hand, by
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 251 
 
 affording a refuge to escaped rebels after an unsuccessful 
 attempt at revolution, it undoubtedly renders revolutionary 
 enterprises somewhat less perilous to those who engage in 
 them, and so far may be said to interfere on the side of 
 revolution. In this difficulty, the best compromise would 
 seem to be, that a foreign State should not surrender 
 fugitives whose alleged crime does not involve any wrong 
 to private individuals, or any damage to the community, 
 other than what necessarily attends interference with 
 governmental functions ; and that it should not even be 
 bound to surrender them, even if they are accused of acts 
 involving such wrong or damage, provided these acts were 
 merely normal incidents in an attempt at revolution : but 
 that, if it does not surrender them, it should be bound to 
 take special care that they do not use its territory as a 
 basis for carrying on serious hostilities against their govern- 
 ment, by placing them if necessary under special control 
 or supervision, and expelling them if there is adequate 
 evidence that they have thus abused its hospitality. 1 Should 
 it refuse to take either of these latter courses when occasion 
 arises, it must be held responsible for any mischiefs that 
 the fugitives may succeed in inflicting on their own State. 
 
 The right of each State to exclude foreigners must 
 extend, in strictness, even to ambassadors or other agents 
 of communication between States ; a refusal to receive them 
 cannot be held to justify war. But it is obviously most 
 expedient, with a view to the maintenance of friendly rela- 
 tions between States, that such agents should not only be 
 admitted, but received with special marks of courtesy ; and 
 even that special immunities from the jurisdiction of the 
 foreign country in which they temporarily reside should be 
 granted them partly from considerations of courtesy, partly 
 to secure the independence of action which the functions of 
 these officials require. 
 
 1 I conceive, however, that it cannot be required to interfere in this way 
 with the fugitives, to prevent acts which it would not regard as criminal if it 
 were itself the object of them ; for instance, a State which allows the bitterest 
 attacks on its own government to be freely published cannot be expected to 
 check similar free criticism on foreign governments.
 
 252 ELEMENTS OF POLITICS CHAP. 
 
 4. The distinction between offences against government 
 and offences against individuals assumes special import- 
 ance, and raises some special difficulties, when we pass to 
 consider the international right of a community to its land. 
 The modern nation, as we have seen, is inseparably connected 
 with its territory the very idea of a modern State involves 
 the notion of dominion exercised over a certain portion of 
 the earth's surface. Such dominion is of course distinguish- 
 able from private ownership so far as this extends ; but it is 
 so far analogous to private ownership from an international 
 point of view, that it is commonly assumed to imply a right 
 of exclusive use for members of the State exercising the 
 dominion, even as regards portions of land which are kept 
 common in use and management. But it must be observed 
 that governmental ownership or dominion may reasonably 
 be extended over parts of the earth's surface where there 
 would be no reason for allowing the right of exclusive 
 use : since the rationale of the two rights is essentially 
 different, from the point of view of humanity at large. 
 The main justification for the appropriation of land to the 
 exclusive use, either of individuals or of groups of human 
 beings, is that its full advantages as an instrument of pro- 
 duction cannot otherwise be utilised ; the main justification 
 for the appropriation of territory to governments is that 
 the prevention of mutual mischief among the human beings 
 using it cannot otherwise be adequately secured. Thus, 
 when piracy was a common danger of grave importance in 
 the later mediaeval and early modern period of European 
 history, any State that kept the peace of the neighbouring 
 seas by putting down pirates, rendered an important service 
 to traders generally ; in return for which it might reasonably 
 claim to exercise governmental control over these seas, and 
 to levy tolls and dues to recompense it for the trouble and 
 cost to which it was put. But the claim that some States 
 put forward to close the seas so controlled by them against 
 foreigners could not thus be justified : against this claim 
 the argument of Grotius, that " the sea is large enough to 
 suffice for all peoples for every use, either of drawing water,
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 253 
 
 fishing, or navigation," was doubtless valid during this 
 period. 1 
 
 At present piracy being reduced to a remote and occa- 
 sional danger the marine dominion of States is restricted 
 by a rule generally accepted throughout the European group 
 of States, to a narrow belt of water along the coast of a 
 State's territory ; and this is only allowed to be appropriated 
 subject to a general right of peaceful navigation ; ' 2 while 
 beyond this limit the sea is now held to be common to all 
 nations for all purposes. The breadth of the recognised belt 
 of " territorial waters " is usually stated to be a marine 
 league, with a somewhat larger allowance in the case of 
 gulfs and bays enclosed by the land of one State: 3 it appears 
 to have been originally determined by the supposed range 
 of artillery. The exact limit must be always somewhat 
 arbitrarily fixed : but the chief general grounds on which it 
 should be determined may be stated to be (1) the need of 
 as much control over the sea as is required for the security 
 of the lives and property of the inhabitants of the land ; 
 (2) the desirability that the government of each country 
 should have the power of regulating the fisheries on its 
 coast, to prevent wasteful exhaustion of the supply. 4 
 
 The extent of the land belonging to different States is, of 
 course, determined mainly by historical causes, with which 
 we are not here concerned. New territory of any import- 
 ance 5 can only be acquired either (1) from other States 
 
 1 De Jure Belli et Pads, II. chap. ii. 3. This argument is certainly no 
 longer valid, in respect of all kinds of fisheries. 
 
 2 It is widely held that this common right of peaceful navigation ought to 
 extend to all navigable rivers ; but the usage of nations does not yet impose 
 the opening of such rivers, as a strict international duty, on the nations that 
 own the banks. 
 
 3 The definition of the generally received breadth is vague in this latter 
 case, and seems to depend somewhat on the proportion of length to breadth. 
 Perhaps "straits" should be put on the same footing as " gulfs and bays." 
 
 4 This latter principle might be fairly used to justify an extension of 
 marine dominion beyond the limits now commonly recognised ; and probably 
 such an extension will be generally allowed as the need of restricting the 
 freedom of fishing grows more urgent. 
 
 5 I pass over, as insignificant, changes in water boundaries arising from 
 fluvial deposits or similar causes.
 
 254 ELEMENTS OF POLITICS CHAP. 
 
 through cession, or conquest ripened by prescription, in 
 either case usually in consequence of war ; or (2) through 
 the extension of dominion over land hitherto unoccupied by 
 any civilised State. Of both modes of acquisition I shall 
 have more to say in subsequent chapters (XVI. and XVIII.); 
 but as regards the latter, I may here notice certain questions 
 which arise, somewhat similar to those dealt with in Chapter 
 IV., where the acquisition of private rights of landownership 
 was discussed. 
 
 In the first place, granting the accepted view that no 
 State infringes the rights of others by taking exclusive 
 possession of unoccupied land, it is difficult to lay down 
 precisely wherein " taking possession " should be held to 
 consist, or how much land should be held to be brought 
 under dominion by any given act of occupation. On both 
 these points it has been the practice of the West European 
 nations in the great process of expansion, by which more 
 than a third of the land-surface of the globe has been 
 brought under the sway of their civilisation to make 
 claims startlingly wide ; and even, though to a lesser extent, 
 to admit similar claims on the part of others. Thus " it 
 has been common to endeavour to obtain an exclusive right 
 to territory by acts which indicate intention and show 
 momentary possession, but which do not amount to con- 
 tinual enjoyment or control ; and it has become the practice 
 in making settlements upon continents or large islands to 
 regard vast tracts of country in which no act of ownership 
 has been done as attendant upon the appropriated land." 
 For instance, " it has been maintained that the whole of a 
 large river basin is so attendant upon the land in the 
 immediate neighbourhood of its outlet that property in it is 
 acquired by merely holding a fort or settlement at the 
 mouth of a river." Such claims as these cannot but appear 
 extravagant when judged by the principle that we are now 
 applying. It would seem that the strict right of a State 
 to exclude other States from land can only be maintained 
 by its exercising a tolerably effective and continuous govern- 
 mental control over the territory in question ; though it
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 255 
 
 would be, generally speaking, unfriendly on the part of any 
 State to occupy, in the neighbourhood of the settlements of 
 another, land over which these settlements may be naturally 
 expected to expand within a comparatively short time, or 
 land specially important for the security of such settlements. 
 Usage, no doubt, has allowed as legitimate much wider claims 
 than our principle would admit ; but I conceive that usage 
 in this respect is likely to grow stricter as the world grows 
 fuller. 
 
 But secondly, I do not think that the right of any 
 particular community to the exclusive enjoyment of the 
 utilities derived from any portion of the earth's surface can 
 be admitted without limit or qualification, any more than 
 the absolute exclusive right of a private landowner can be 
 admitted. The rigour of this right has hitherto been 
 mitigated, in modern States generally, by the practical 
 allowance of free immigration ; but if this should ever be 
 sweepingly barred, I conceive that the right of exclusion 
 would be seriously questioned in the case of States with 
 large tracts of waste land suitable for cultivation ; and that 
 some compromise would be found necessary between the 
 prescriptive rights of the particular State and the general 
 claims of humanity. On the one hand, no well-ordered 
 community could reasonably be required to receive alien 
 elements without limit or selection ; on the other hand, an 
 absolute claim to exclude alien settlers adequately civilised, 
 orderly, and self-dependent, from a territory greatly under- 
 peopled, cannot be justified on the principle of mutual 
 non-iuterference. On similar grounds I should hold that 
 dominion over the sea ought not to be used for the purpose 
 of excluding aliens from fishing in the seas controlled, 
 provided they submit to the regulations necessary to pre- 
 vent exhaustion of the fisheries, and pay an equitable share 
 of the cost of such regulations. 
 
 Finally, it must be observed that in discussions among 
 civilised States as to the occupation of new territory, the 
 claims of the uncivilised tribes to the lands in some sort 
 occupied by them have been usually ignored. Such claims,
 
 256 ELEMENTS OF POLITICS CHAP. 
 
 however, cannot be left out of account in any statement of 
 the general principles of international duty. It does not 
 indeed seem to me that the moral right of savages to their 
 hunting-grounds can be allowed, in the interest of the 
 human race, to override the claim of civilised races to 
 expand : on the other hand, I regard it as the plain duty 
 of the latter to make every effort to secure to the savages 
 as full compensation as possible for the utilities of which 
 they are deprived, and to extend to them such share of the 
 advantages of civilisation as they are capable of receiving. 
 To what extent, and by what means, this result can be 
 brought about, I shall hereafter consider. 1 
 
 The preceding discussion has led us to take note of the 
 large portion of the earth's surface that lies outside the 
 territory of any State ; the most important part of this is 
 the open sea, which forms the common highway for the 
 ships of all nations. To prevent confusion and friction it 
 is expedient that members of any State should, as far as 
 possible, continue to be governed by the law of their own 
 community, when they are in this region of no-government. 
 Hence (1) the civil relations of members of the same State 
 should continue to be governed by their own law ; and (2) 
 in any voluntary transactions between members of different 
 communities, the obligations incurred by each should be the 
 obligations that his own law would have imposed on him, 
 unless it can be shown that he intended to incur further 
 obligations ; and (3) each government, in fulfilling its 
 general duty of protecting its subjects from mischief outside 
 the limits of civilised States, should show as much regard 
 as possible for the governmental rights of other powers, by 
 allowing, as a general rule, that wrongs inflicted by foreigners 
 be redressed and punished by the courts of the latter 
 provided that tolerable redress can thus be attained. 
 
 There is, however, an important exception to the rule 
 last stated. The crew of any vessel ordinarily forms an 
 organised body under a (subordinate) government, to which 
 it is expedient to grant extensive powers, in view of the 
 
 1 See Chap. XVIII. 8.
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 257 
 
 possible absence, for considerable periods, of ordinary govern- 
 mental control, and the special dangers of conflict and dis- 
 cordant action : and, for the maintenance of order, these 
 powers should extend to the repression of wrongs committed 
 or threatened by any person on board the vessel, to what- 
 ever State he may belong. 
 
 5. Let us pass to consider the obligations arising out 
 of the contracts of a State with foreign States or individuals. 
 As regards the latter there is not much to be said ; when 
 an individual incurs damage through violation of contract 
 by a State, he has, generally speaking, a clear right to adequate 
 compensation similar to what he would have if a fellow- 
 citizen had broken faith with him which it is the strict 
 duty of the offending State to satisfy ; provided always the 
 contract has not been vitiated by fraud. How far it is 
 expedient that his claim should be enforced, if necessary, by 
 violence on the part of the community of which he is a 
 member, must depend on circumstances. It is noteworthy, 
 however, that failure to pay debts to private persons on the 
 part of a State is not usually treated as an international 
 offence, probably on account of the laxity of bankruptcy 
 law in modern States generally ; though it might reasonably 
 be so treated in particular cases, if the failure could not be 
 justified by the financial necessities of the defaulting State. 
 
 It is more important to note the different conditions 
 under which contracts have to be held valid between State 
 and State, as compared with contracts between citizens. In 
 either case it is manifest that a contract cannot be bind- 
 ing which has been obtained by fraud ; and personal vio- 
 lence exercised on a government or its agents, to obtain their 
 consent by terror, must be held to invalidate an international 
 compact as it would a compact between individuals. But 
 violence exercised on a State by war cannot be held to have 
 this effect ; since war, as we have seen, is, in the last resort, 
 the only normal means to which a State can have recourse 
 to obtain reparation for wrong and adequate security against 
 its repetition. Hence the fulfilment of onerous conditions 
 enforced by a victor who had just cause for war, so far as 
 
 3
 
 258 ELEMENTS OF POLITICS CHAP. 
 
 they are not manifestly in excess of due reparation or the 
 requirements of future security, must be held to be as clearly 
 binding as any other international duty. The case is no 
 doubt theoretically different l where the conqueror was in the 
 wrong ; and even where he is in the right, if the terms offered 
 by him to the vanquished are immoderate in their rigour. 
 But even here expediency forbids us to lay down broadly 
 that a treaty made under unjust coercion is simply invalid ; 
 since the universal adoption of this principle would greatly 
 aggravate the evils of unjust victory: it would be the 
 interest of the conqueror to crush his enemy completely and 
 relentlessly, as he would no longer be able to trust his en- 
 gagements. In this difficulty international morality seems 
 practically to be forced to a rough compromise, which will 
 be considered in the next chapter, after we have discussed 
 generally the regulation of war and its effects. 
 
 6. So far we have had in view States supposed to 
 possess substantial internal cohesion. We have now to 
 consider a new class of questions which arise from the fact 
 that this internal cohesion is liable to be broken, so that 
 States undergo a process of internal disorder caused by the 
 insurrection of a part of the community. This process may 
 aim either (1) at revolution, substituting a new government 
 for the old over the whole community ; or (2) at the dis- 
 ruption of a part of the community from the rest, with a 
 corresponding portion of territory ; and in either case it 
 may be more or less slow and prolonged, and may end 
 either in failure or success. 
 
 What then is the duty of other States in relation to 
 these processes? On the principle of the mutual non- 
 interference of States, which we have hitherto been apply- 
 ing, the process of revolution is an internal affair with 
 which foreign governments are not concerned ; except 
 transiently, if the conflict between the party of order and 
 the revolutionists is sufficiently obstinate and prolonged to 
 
 1 It must be admitted that this distinction can hardly be expected to have 
 any important practical application until international morality is materially 
 improved.
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 259 
 
 assume the dimensions of civil war, so that other States, in 
 order to carry out the rule of non-interference, are forced 
 to take up towards both contending parties the attitude of 
 neutrals towards belligerents. This latter point of inter- 
 national duty will be more conveniently considered in the 
 next chapter. In any case, when the process of revolution 
 is over, the international rights and obligations of the State 
 that has passed through it will revive unchanged, whether 
 that State be under its old government or under a new one. 
 The case is different with disruption. If this process be 
 successfully carried through, it will be the duty of other 
 States who wish to adopt an attitude of perfect neutrality, 
 to recognise at a certain point of time that a new political 
 community has come into existence, to which they must 
 accord the ordinary rights of an independent State, while 
 claiming from its government the fulfilment of customary 
 international obligations. And it may often be a delicate 
 matter to determine the exact point of time at which this 
 recognition is to take place ; since to accord it too soon 
 would be showing undue partiality to the disruptionists, 
 while to delay too long would be an offence to the new-born 
 State. If the government of the old State itself recognises 
 the independence of its revolted province, as soon as its 
 struggle to retain it is substantially over, the difficulty will 
 be removed ; but if it clings to the claim of supremacy after 
 it has ceased to make serious efforts to realise it, its ob- 
 stinacy cannot justify other States in postponing recognition. 
 They must judge for themselves when the substantial 
 struggle is over, and must recognise the government of the 
 insurgents as having succeeded, generally 1 speaking, to the 
 international rights and obligations of the previous govern- 
 ment, in respect of the persons and territory that are de 
 facto under its control at the time of its recognition. Some 
 difficulty, however, may arise as to the division of obliga- 
 tions especially debts. It is clear that the government of 
 
 1 I say "generally," because sometimes special rights may have been 
 granted, or obligations imposed, in view of considerations which disruption 
 has annihilated.
 
 26o ELEMENTS OF POLITICS CHAP. 
 
 the new State must be held responsible for all such debts of 
 the old State as were specially connected with the disrupted 
 province having been either contracted for local purposes 
 or secured on local revenues. On the other hand, it seems 
 clearly just, under ordinary circumstances, 1 that the general 
 debt of the old State, so far as this debt was incurred while 
 it included the disrupted province, should be divided 
 equitably between the two independent States that have 
 resulted from the process of disruption. But it would seem 
 that the division ought to be made by treaty between the 
 disrupted communities ; and that if no such treaty is made, 
 the community that claims to represent the previously 
 existing State must be held responsible for the whole debt, 
 as for any other obligations arising out of contract, where 
 the possession of a certain territory was not an express or 
 implied condition of the contract. Only, if no one of the 
 disrupted fragments claimed a continuity of existence with 
 the previous State, would a division of the obligations of the 
 previous State among the fragments have to be undertaken 
 by foreigners to protect their own interests ; but this case 
 is likely to be rare. 
 
 Hitherto I have assumed that the duties of foreign States 
 are to be determined on the principle of non-intervention. 
 But the analogy between States and individuals, on which 
 we have been working throughout, fails in a marked 
 manner when a State is torn by violent civil dissensions : 
 foreign States if they would not have their conduct 
 regulated by empty fictions must recognise that in this 
 case the quasi-personal unity which international morality 
 attributes to States has vanished ; and that they have 
 practically to deal with two bodies instead of one, each 
 accusing the other of violations of right grave enough to 
 justify a resort to force. The principles on which violent 
 insurrection and violent repression of insurrection are 
 respectively to be justified have already been partially con- 
 
 1 This qualification is intended to exclude such cases as that of (1) a 
 colony which had never shared the burden of the mother country's debt ; 
 or (2) a province which had been conquered aud never really submitted.
 
 xv PRINCIPLES OF INTERNATIONAL DUTY 261 
 
 sidered, and will be further discussed in the concluding 
 chapter of the treatise : but assuming that there are some 
 cases in which the insurgents would have right on their 
 side and others in which they would be in the wrong we 
 may here note certain general considerations bearing on the 
 expediency of foreign intervention on either side in such 
 cases. 
 
 An attempt to change violently the government of a 
 country may arise in two ways ; either from a dispute 
 between two of the recognised organs of government, in 
 which neither will give way, or from an insurrection of 
 the governed generally or a portion of them against 
 the government as a whole. In the former case the con- 
 flicting organs, in endeavouring to enforce their respective 
 claims by arms, are appealing to the people governed to 
 decide the point at issue : and the people to whom appeal 
 is thus made, if sufficiently coherent to deserve the name of 
 a nation, must generally be far better qualified to decide it 
 than foreigners can be ; so that the intervention of the latter 
 is likely to be simply mischievous. The mere fact that the 
 claims of one of the contending organs are traditionally 
 established, while those of the other are revolutionary, does 
 not materially affect the case ; for the change may still be 
 opportune and desirable, the ripe fruit of time, though 
 needing to be violently plucked. There is further a serious 
 danger that if intervention be tolerated, the intervening 
 State or States will take advantage of their neighbour's 
 weakness to secure some unjust gain at its expense ; and 
 that this ill-gotten gain will carry with it the seeds of 
 future bitterness and strife. Such intervention, therefore, 
 should generally be viewed with reprobation. 
 
 There are, however, special grounds on which, even in 
 this case, intervention may be justified : thus, e.g., the 
 revolutionary party may adopt an aggressive attitude to- 
 wards foreigners, by acting avowedly on principles which 
 they not only profess to be applicable to other States, but 
 actually threaten to aid in applying elsewhere if they suc- 
 ceed at home. Only, to give the required justification, the
 
 262 ELEMENTS OF POLITICS CHAP, xv 
 
 aggressiveness ought to be definite and unmistakable ; other- 
 wise the foreign intervention will be justly open to the 
 charge of causing the evil that it is designed to avert. 
 
 The case of an insurrection by the governed against the 
 government as a whole differs from that just discussed, 
 chiefly because it is more likely to occur in what has been 
 called an " inorganic " l State ; i.e. one in which the rule is 
 that of an alien element supported by an army divorced in 
 feeling from the rest of the population. The community 
 thus artificially held together lacks the kind of cohesion 
 that constitutes a nation ; and this is also likely to be the 
 case where the aim of insurgents is what I have called 
 " disruption," i.e. to secede from the State to which they 
 belong with a portion of its territory. In either of these 
 cases the intervention of a foreign State on the side of the 
 insurgents is not equally open to the objection of interfer- 
 ing with an appeal to the nation, as the proper final arbiter 
 of internal disputes : and if it appears that the contending 
 parties are deeply and irreconcilably divided in national 
 sentiment, such intervention seems admissible, under such 
 conditions as would render it expedient in wars between 
 independent States : i.e. if it seems likely to be effective to 
 secure peace and tends to prevent injustice. The observance 
 of these conditions, however, is likely to confine such inter- 
 vention within narrow limits ; in view of the danger that 
 being designed, or believed to be designed, to further the 
 aggrandisement of the intervening State or States it may 
 arouse the jealousy of others, and cause an extended war. 
 1 See Seeley's Introduction to Political Science, Lee. iii. pp. 73-75.
 
 CHAPTEE XVI 
 
 THE REGULATION OF WAR 
 
 1. As has already been pointed out, any serious and un- 
 provoked violation of strict international duty gives the 
 State whose rights are violated a claim to reparation ; and 
 if reparation be obstinately refused, the offended State must 
 be held to have a right to obtain it by force, with the aid 
 of any other States that can be persuaded to join it. This 
 exercise of force need not necessarily amount to war ; for 
 instance, if the property belonging to a State or any of its 
 members has been unjustly seized by another State, repara- 
 tion may be obtained by " reprisals," i.e. by seizing the 
 property of the offending State or its members, provided the 
 public faith of the retaliating State is not pledged to its 
 protection. 1 It is possible that this exercise of force, if 
 carefully limited to the exaction of redress, may be followed 
 by negotiation and amicable settlement ; but it is too prob- 
 able that it will lead to the general rupture of peaceful 
 relations that substitution of physical conflict for verbal 
 discussion, which we call war. 
 
 The refusal of reparation cannot be regarded as obstinate, 
 if the inculpated State is willing to accept the decision of 
 an arbitrator on the claims urged against it. And I think 
 it very important that all who desire peace and justice 
 should urge the adoption of this method of settling disputes, 
 wherever there are not strong reasons for regarding it as 
 
 1 This proviso is inserted to exclude repudiation of debts due to subjects 
 of the offending State : a procedure, however, from which modern States 
 will usually be restrained by the fear of losing their credit. 
 
 263
 
 264 ELEMENTS OF POLITICS CHAP. 
 
 impracticable ; since an extension of arbitration seeins the 
 most hopeful means of reducing the danger of war among 
 civilised States. At the same time, it is no less important 
 to consider carefully the inevitable limitations of the sphere 
 of practicable arbitration. 
 
 1. The violation of right may be a continuing evil, which 
 requires immediate abatement as well as reparation ; and 
 the violence required for this abatement is likely to lead to 
 further violence on the other side ; so that the conflicting 
 States may be drawn into the condition of war by a series 
 of steps too rapid to allow of the delay necessary for arbi- 
 tration, and involving so many fresh grounds of complaint, 
 that the decision of the original dispute may easily sink 
 into unimportance. 
 
 2. The interests at stake may be so serious that a State, 
 believing itself able to obtain redress by its own strong 
 hand, cannot reasonably be expected to run any serious risk 
 of a wrong decision on the part of the arbitrator. And 
 such a risk is likely to occur when the dispute is one that 
 involves a disagreement on principles of international duty, 
 widely extended among civilised States ; since in such case 
 it will be difficult to find an impartial and trustworthy 
 arbiter. Thus, during the sixteenth and seventeenth 
 centuries, it would have been difficult to find such an 
 arbiter in Europe in any quarrel between a Catholic and a 
 Protestant State ; and in our own time, it would be 
 difficult to find such an arbiter, in any quarrel caused by 
 the claims of a nationality struggling for independence. 
 
 3. The weight of the consideration last mentioned is 
 increased when we take into account the inevitable vagueness 
 and uncertainty in which many important points in the 
 determination of international duty are involved. This will 
 appear from the present and preceding chapters, so far as the 
 theoretical determination on principles is concerned ; while 
 in the next chapter it will be shown that further difficulties 
 arise when we try to settle the limits of strict or " legal " 
 international duty by reference to established usage. In con- 
 sequence of these uncertainties and difficulties, even where
 
 xvi THE REGULATION OF WAR 265 
 
 there is no definite conflict of principles, the ties of interest 
 and alliance that bind nations together may render it difficult 
 to find an arbiter whose absence of bias can be trusted 
 when the question to be decided is of great importance. 1 
 
 A portion of the obstacles to arbitration just stated would 
 certainly be diminished, if civilised nations could be induced 
 to agree on the appointment of a standing Court of Inter- 
 national Arbitration, to which questions might be referred 
 for decision by the consent of disputant States. 2 Still the 
 danger of bias would not be removed ; and it would still be 
 very doubtful whether, in disputes in which serious national 
 interests were at stake, the government of a powerful State 
 would feel justified in incurring the danger, even supposing 
 it to be sincerely desirous of subordinating national interests 
 to international justice. In such cases peace might often 
 be more likely to be preserved by conciliatory efforts to find 
 through direct negotiation a tolerable compromise between 
 the conflicting interests of the disputants, than by insisting 
 on arbitration. 3 
 
 Historically, the two causes of bias that I have dis- 
 
 1 Some further discussion of the problem presented by a conflict between 
 the claim of national interests regarded as imperative and established rules 
 of international duty will be found in the following chapter, XVII. 2. 
 
 2 As proposed by Maine in his (posthumously published) lectures on 
 International Law, Lee. xii. 
 
 3 I have not noticed difficulties of detail in the way of arbitration, such 
 as the difficulty of attaining agreement as to the scope of an arbitrator's 
 inquiry, and the facts he is to take as accepted by both disputants. Diffi- 
 culties of this kind are not unfrequently found to mar an otherwise fair 
 prospect of settlement by arbitration. 
 
 [The omission of any mention of another difficulty in the way of arbitra- 
 tion that of enforcing the arbitrator's award was noted by the author as a 
 defect in this book. He left no indication of how he would have supplied the 
 omission in a new edition, but the following is an analysis of the subject given 
 by him in notes for a lecture : ] 
 
 (a) It is not likely that a State, having consented to arbitration, would 
 through its government formally refuse without excuse to be bound by a 
 decision to which it had agreed to be bound. This would too flagrantly 
 violate morality. With such a State no engagements could be made, and a 
 civilised State could hardly place itself in that position. But it might 
 profess itself unable [to carry out its obligations], e.g. if it had to cede 
 territory, the inhabitants might refuse to be ceded, and it might declare itself 
 unable to coerce them effectually, owing to the strength of popular feeling.
 
 266 ELEMENTS OF POLITICS CHAP. 
 
 tinguished have often operated together. The most serious 
 wars of the European group of States have been the combined 
 results of conflicting fundamental principles, religious or 
 political, and conflicting national or governmental interests 
 of great real or supposed importance : and where such 
 conflicts arise, arbitration is rarely likely to be an acceptable 
 means of preserving peace ; since the conflict of principles 
 makes it difficult to find an arbiter in whose decision both 
 sides can sincerely acquiesce as just, while the magnitude of 
 the interests at stake makes acquiescence in an unjust decision 
 appear a supine and cowardly abandonment of patriotic duty. 
 4. We must also take note of the cases where open and 
 avowed invasions of international rights are resorted to as 
 a measure of self-protection on the part of the invading 
 State, without any hostile intent, as in the famous seizure 
 by England of the Danish fleet in 1807. Such measures 
 may be justified as necessary to the self-preservation of the 
 State that resorts to them ; but it can hardly be expected 
 that the State that suffers from them will patiently submit 
 to them, if it has any reasonable prospect of success in war. 
 
 Or there might be a revolution, and the new government might declare the 
 old one to have exceeded its constitutional powers. These dangers, however, 
 hardly affect arbitration treaties more than others. 
 
 (6) More probably, [the recalcitrant State] would avail itself of some excuse. 
 It might allege that the [arbitration] tribunal had exceeded its powers : if 
 there were any ambiguity in the definition of the scope of the question, 
 human language being imperfect. It might allege that the award had been 
 obtained by fraud ; or corrupt bias on the part of the arbitrators ; or that the 
 terms of the award were equivocal ; or even only that it was a flagrant viola- 
 tion of justice. It will be observed that these are pleas which, if well founded, 
 would morally justify refusal ; but even if they were all ill founded, one or 
 other of them might nevertheless be accepted, in the state of indignant patriotic 
 sentiment, by the defeated nation, and might have some support outside. 
 
 (c) The defeated nation might have other grounds for quarrel with its 
 victorious opponent, and unless arbitration were compulsory might go 
 to war on one of these. This last is perhaps the most serious [danger] : 
 since we cannot assume arbitration compulsory, without assuming that the 
 beginnings of a common government of civilised states are established. 
 
 It should be observed that in considering the danger of an arbitrator's 
 decision not being complied with we need not show that it is probable ; even 
 a small chance that Nation B will not be bound is a reasonable objection 
 from the point of view of Nation A, conceiving itself more honest.
 
 XVI THE REGULATION OF WAR 267 
 
 Supposing war inevitable, we have to consider what rules 
 can be laid down for the conduct of the States engaged in 
 it, or of other States. 
 
 In the first place, we cannot lay down, on the principle 
 of mutual non-interference, that it is the strict duty of 
 any State, other than those between whom the quarrel has 
 broken out, to take part in the war. If, however, there is 
 general agreement as to the right and wrong of a quarrel, 
 I think that it is, generally speaking, both the duty and 
 the interest of neighbouring States to take the risk of 
 threatening intervention to prevent manifest aggression, if 
 there is a fair prospect of forming a league of States for 
 the purpose of such intervention, so strong as to render 
 resistance on the part of the aggressor improbable. I think 
 that the formation of such leagues is the most hopeful 
 mode of preparing the way for a permanent federation of 
 civilised States, strong enough to prevent wars among its 
 members. If, however, there is no general agreement as to 
 the side on which justice lies, or if, for some other cause, 
 it is impossible to form a league of decisive strength 
 on behalf of what is recognised as justice, it will be 
 generally both the duty and the interest of the neighbour- 
 ing States to adopt the attitude of strict neutrality, in 
 order to avoid useless and dangerous extension of the evils 
 of war. 
 
 Accordingly, in formulating the rules which civilised 
 opinion should attempt to impose on combatants, we must 
 abstract from all ' consideration of the justice of the war ; 
 we must treat both combatants on the assumption that each 
 believes himself in the right, and that his object in fighting 
 is to obtain due redress for wrong, and adequate security 
 against its repetition : since, whether this be so or not in any 
 particular case, it would usually be idle to try to subject an 
 unjust combatant as such to any special restrictions or dis- 
 abilities in the conduct of his war. For, even supposing 
 that there is a decided preponderance of opinion in the rest 
 of the civilised world in favour of one of the combatants ; 
 still the subjection of the other combatant to special dis-
 
 268 ELEMENTS OF POLITICS CHAP. 
 
 abilities could only be usefully enforced by a concert of 
 nations which, if it can be made effective for this purpose, 
 could probably be made effective for the prevention of the 
 war altogether, and had much better be so employed. 
 
 2. Let us consider, then, how the duties of a belligerent, 
 fighting in the name of justice, and under the restraints of 
 morality, are to be determined, first, as regards his enemies, 
 and, secondly, in relation to neutral States. 
 
 To begin with the mutual duties of belligerents. The 
 general principle of such duties seems not difficult to state. 
 It is clear that the aim of a moral combatant must be to 
 disable his opponent, and force him to submission, but not 
 to do him (1) any mischief which does not tend materially 
 to this end, nor (2) any mischief of which the conducive- 
 ness to the end is slight in comparison with the amount of 
 the mischief. Unfortunately, this second limitation is in- 
 evitably so vague as to leave room for great differences of 
 opinion' as to its proper application; and, moreover, its 
 application must continually vary with variations in the 
 arts of war, and in the circumstances and prevailing senti- 
 ments of civilised men. Fortunately, on the other hand, 
 the restraints that at any time ought clearly to be imposed 
 on a belligerent, in the application of this principle, are 
 usually sustained by strong sanctions, at least when the 
 area of the war is restricted ; l from the danger that the 
 belligerent who violates them runs of rousing public indig- 
 nation against himself in neutral communities, as well as 
 hardening the resistance of his enemy. 
 
 For the sake of illustration I proceed to sketch in out- 
 line the particular restraints to which a belligerent may 
 now reasonably be expected to conform, in his treatment of 
 his enemy, according to the general principles above laid 
 down ; drawing attention to any difficulties and to points 
 in which opinion has recently changed or is changing. 
 
 To begin with the instruments and methods of war. A 
 
 1 An important incidental evil of a widely-extended war is, that the 
 restraining force of public opinion on the belligerents is inevitably much 
 reduced by it.
 
 xvi THE REGULATION OF WAR 269 
 
 belligerent may be expected to abstain from using weapons 
 that inflict decidedly more suffering than others, without 
 crippling the enemy at all in proportion, 1 and from devasta- 
 tion that does not importantly facilitate military operations. 
 And though, generally speaking, he must be allowed to 
 deceive the enemy in any way he can, he may be restrained 
 from using as means of deceit the flags of truce, and other 
 symbols that are needed for carrying on the necessary 
 intercourse of enemies. 
 
 Again, he may be expected to abstain from recruiting 
 his army compulsorily out of the population of an invaded 
 country ; since the modern sense of nationality would not 
 only excite a strong reprobation for such conduct, but would 
 also make the forced recruits a bad element of the army. 
 On both these points there has been a considerable change of 
 opinion since the now prohibited practice was largely carried 
 on by the Prussians in Saxony in 1 756 ; owing to the general 
 growth of national sentiment that has taken place in the 
 interval. A more important rule is that which we may 
 confidently hope will in future restrain civilised belli- 
 gerents from inflicting personal injury on non-combatants, 
 so far as they submit ; and even from imprisoning them, 
 unless they are of special political importance as sovereigns 
 and diplomatic agents, or professionally employed in render- 
 ing services to combatants as commissariat employe's, 
 messengers, etc. The effect of scaring the enemy into sub- 
 mission by harsh treatment of non-combatants is on the 
 whole too uncertain and remote to outweigh (1) the danger 
 of rousing the sympathetic indignation of neutrals, together 
 with (2) the serious inconveniences to which an invading 
 army is exposed in the midst of a population embittered by 
 
 1 In the Declaration of St. Petersburg, in 1868, the European Powers laid 
 down that it would be "contrary to the laws of humanity to employ arms 
 which render death inevitable." I do not understand on what principle 
 this is laid down, since death is the most effectual kind of disablement ; and 
 if the process that made it inevitable also made dying more rapid, without 
 making it more painful, the sufferings of a battlefield would be materially 
 diminished. And international morality has never prohibited such whole- 
 sale destruction as is caused (e.g.) by mines in sieges.
 
 270 ELEMENTS OF POLITICS CHAP. 
 
 private injuries. Similarly, an invader may be restrained 
 from interfering with the laws and customs and social life 
 of any portion of the hostile country that he may tempor- 
 arily occupy, so long as it submits : though it is difficult 
 to put limits to the severity which he may legitimately 
 use to crush resistance to his authority on the part of 
 non-combatants. 
 
 Similarly, belligerents may be expected to abstain from 
 inflicting personal injuries on combatants hors de combat : 
 unless exceptionally by way of punishment for violating the 
 usages of war. 1 
 
 On the other hand, in order that combatants and non- 
 combatants may claim their respective privileges, the adver- 
 sary has a manifest right to demand that a clear line shall 
 be drawn between the two ; so that no individual may avail 
 himself of the advantages of both characters at once. The 
 difficulty here arises solely or mainly in the case of resist- 
 ance to an invading army : it would be out of the question 
 to lay down that citizens hitherto unwarlike may not rush 
 to arms to defend their country in its extremity ; but the 
 invader may fairly claim that if they thus join the ranks of 
 combatants, it shall be in some manner both orderly and 
 unmistakable : that is, under some responsible authority 
 who can keep their hostile acts within the usages of war, 
 and with some distinctive marks, not easily removable, of 
 their newly assumed profession. 
 
 For similar reasons merchant vessels should not be 
 allowed to assume a warlike character unless attacked. It 
 does not indeed follow that we ought to disallow " privateers " 
 i.e. ships sailing under a commission of war, but fitted 
 out by private persons for private gain, to be made by 
 preying on the enemy's commerce : but, experience having 
 shown the difficulty of maintaining proper control over such 
 
 1 The slaughter of prisoners has also been justified as a measure of self- 
 protection : but I conceive that it would now only be tolerated however 
 extreme the emergency if the prisoners refused to give their parole not to 
 serve during the remainder of the war, or if experience showed that their 
 word could not be trusted.
 
 XVI THE REGULATION CF WAR 271 
 
 armaments, it has been agreed by most civilised States l to 
 abolish privateering. 
 
 In the treatment of combatants who have been taken 
 prisoners, our general principle will require the captor to 
 refrain from any>- rigour not necessary for safe detention 
 while the war lasts, and to provide adequate food and 
 clothing for the enemies kept in custody : and if, to recoup 
 the expenses thus incurred, he must be allowed to make his 
 captives work, it will prevent him imposing on 1 them any 
 work of a needlessly degrading or repulsive kind. A more 
 onerous demand on the victor is that of succouring and 
 tending the sick and wounded left behind by a flying 
 enemy ; but the common sentiment of the civilised world 
 would now impose this as an imperative duty, which must 
 be performed even at considerable inconvenience : and the 
 same sentiment is probably now strong enough to secure 
 neutrality not only forjj surgeons and medical attendants 
 while employed in medical functions, but also for hospitals, 
 ambulances, and hospital ships, with their surgical and 
 medical stores. 
 
 To sum up ; so far as personal injuries are concerned, 
 there is, I think, no material difficulty in limiting the 
 mischief caused by war to something like the minimum 
 necessary to achieve the ends of war. 
 
 S 3. Restraint is more difficult as regards seizure of 
 property. The heavy pecuniary burdens that the conditions 
 of modern warfare impose on a belligerent render most 
 kinds of wealth public or private undeniably useful to 
 him : property has no inconvenient patriotic sentiments 
 that will be violated if it is made to serve the needs of the 
 enemy, and common humanity is not offended by spoliation 
 if mild and regular, as it is by the harsh treatment of 
 innocent persons. 
 
 Still, certain limitations may be established : An invader 
 must be allowed to seize the movable public property of 
 
 1 A declaration to this effect, adopted at the Congress of Paris in 1856, 
 has since been signed by all civilised States, except Spain, Mexico, and the 
 United States.
 
 272 ELEMENTS OF POLITICS CHAP. 
 
 the invaded country, and freely to use immovables for his 
 own purposes : but he may be restrained from appropriating 
 such things as archives or State papers, which are specially 
 important to the country in which they are found, but not 
 available for warlike uses on either side. Probably, too, 
 the appropriation of collections of pictures or books may 
 be prevented in future civilised warfare ; since they could 
 only be made available for warlike purposes by being sold 
 and so most probably dispersed : and the loss thus entailed, 
 not only to the spoliated country but to mankind at large, 
 would generally be quite disproportionate to the belligerent's 
 gain. On somewhat similar grounds a temporary conqueror 
 may be restrained from diverting public revenues set per- 
 manently apart for such social purposes as healing, educa- 
 tion, art, and science, for which the government of the 
 invaded country is practically only a trustee. 
 
 The most serious difficulty arises when we attempt, on 
 our general principle, to fix the limit of an invader's right 
 to take private property. The indiscriminate pillage that 
 was considered legitimate until the eighteenth century, has 
 gradually died out, "partly from an increase of humane 
 feeling, partly from the selfish advantage of belligerents, 
 who saw that the efficiency of their soldiers was diminished 
 by the looseness of discipline inseparable from marauding 
 habits, and their military operations embarrassed in countries 
 of which the resources were destroyed"; 1 in fact, " the suffer- 
 ing attending it was out of all proportion to the advantages 
 gained by the belligerent employing it." But this would 
 not be true of the orderly and regulated levying of supplies 
 from private persons through "contributions" of money 
 beyond ordinary taxes, and " requisitions " of special com- 
 modities needed by the army, food and fodder, horses, 
 waggons, boats, and certain kinds of labour. Such " requisi- 
 tions " differ from regulated pillage mainly in the receipts 
 which it is customary to give for them, which facilitate the 
 recovery of compensation from their own government by 
 
 1 The passages quoted in this as in the preceding chapter are from 
 Mr. W. E. Hall's treatise on International Law.
 
 xvi THE REGULATION OF WAR 273 
 
 the private persons. If such receipts are given, both " con- 
 tributions " and " requisitions " may be regarded as payments 
 on account, compulsorily made by private members of the 
 invaded community, of a portion of the pecuniary compensa- 
 tion for the mischief of the war which the invader holds 
 himself justified in asking from the community as a whole. 
 So regarded, these contributions in money and kind conduce 
 to the invader's main end in three ways: (1) they give him 
 supplies of which he stands in need ; (2) they diminish the 
 power of his non-combative enemies to assist in the war 
 against him in the one way in which, as non-combatants, 
 they naturally would assist by furnishing the "sinews of 
 war " ; and (3) at the same time, if imposed over a con- 
 siderable district, they apply a strong pressure tending to 
 indispose the enemy to continue hostilities : while yet, 
 unless the contributions are excessive in amount, so great 
 as to cause severe distress, the pressure can hardly be called 
 cruel. 
 
 I therefore think that, on our general principles, the 
 belligerent cannot reasonably be restrained from enforcing 
 such contributions ; and in fact they were enforced, with 
 the full severity that can be regarded as admissible, by the 
 invaders in the last European war. 
 
 If, then, an invader who gets a portion of his enemy's 
 territory under his control may exact contributions from 
 his enemy in money and kind, it would surely be unreason- 
 able to require a maritime power to abstain altogether from 
 attacking the private property of enemies at sea: though 
 it may reasonably be required to abstain from such attacks 
 where they would inflict hardships out of proportion to 
 their utility to the belligerent. The seizure of coast fishing- 
 boats is a case of this latter kind, except where such boats 
 are specially useful for military purposes. 
 
 4. Let us pass to consider the rules by which the 
 relations of belligerents to neutrals are to be regulated. 
 The main difficulty here arises from the necessity of apply- 
 ing together two principles, each of which seems clearly 
 acceptable if considered by itself, but which, when applied, 
 
 T
 
 274 ELEMENTS OF POLITICS CHAP. 
 
 come inevitably into a conflict that can only be settled by 
 a more or less arbitrary compromise. It is clearly the 
 duty of a belligerent to avoid injuring communities that 
 are not at enmity with him, and their members ; and it is 
 clearly the duty of a neutral neither to assist nor to hamper 
 either belligerent in his warlike operations. And some 
 deductions from either principle are obvious and uncon- 
 tradicted. Thus, on the one hand, it is plainly the duty of 
 a belligerent not to send his forces into the territory of a 
 neutral government without the consent of the latter, 
 however convenient he may find this for the purposes of 
 his military operations, and not to interfere with any 
 members of neutral States whom he finds outside their 
 countries, unless they are aiding his enemy. And, on the 
 other hand, it is the duty of a neutral State to prohibit its 
 subjects from engaging personally in the service of either 
 belligerent, and to take measures to prevent their doing 
 this to any material extent ; l and also to be impartial in 
 either closing or opening its territory to both belligerents 
 equally. 
 
 But in realising this impartiality difficulties arise : since 
 regulations that are formally impartial, and are applied 
 with strict equality to both sides, may practically give a 
 decided advantage to one of the two belligerents, owing to 
 his situation and circumstances. This being so, the safer 
 course for the neutral is to refuse to both belligerents any 
 use of his territory that may facilitate warlike operations ; 
 and this is what existing opinion would regard as his duty, 
 so far as the admission of organised forces into his territory 
 is concerned. 2 But this rule can hardly be extended to the 
 
 1 Though the progress of modern civilisation has continually sharpened 
 this duty, it ought, I conceive, to be made formally more strict than it is now. 
 Any member of a neutral State engaging in the service of either belligerent 
 ought ipso facto to lose his nationality ; and only be allowed to recover it 
 when the war is over by going through a process of re-nationalisation. 
 
 2 It will generally be the neutral's interest for a different reason to adopt 
 the alternative of impartial closing, rather than impartial opening, so far as 
 armies are concerned ; i.e. because the latter alternative is more likely to 
 bring it into collision with one or other of the belligerents. And though
 
 xvi THE REGULATION OF WAR 275 
 
 exclusion of ships of war from the territorial waters of a 
 friendly State : since such ships may be in pressing need of 
 provisions or coal, which they cannot otherwise obtain, and 
 which, therefore, it would be inhumane not to allow them 
 to purchase. On the other hand, it is obvious that, if the 
 privilege of purchasing such supplies in neutral ports were 
 granted without limit, the neutral territory might practi- 
 cally furnish the belligerent with a base of operations, 
 enabling him to carry on naval war from which he would 
 otherwise have been precluded. The neutral, therefore, has 
 the delicate task of limiting the hospitality it extends to 
 ships of war to the minimum that humanity considering 
 the inevitable conditions of navigation may seem to 
 require. Similarly, common humanity requires that a 
 neutral State should extend hospitality to a beaten army 
 flying towards its frontier ; but it must not allow them to 
 start from its country to resume hostilities : it would seem 
 to be the neutral's duty to disarm and " intern " them, un- 
 less they accept the position of prisoners of war released 
 on parole. 
 
 More serious difficulties arise out of the relations of 
 trade which bind together modern States in time of peace 
 to a continually increasing extent. For, on the one hand, 
 any trade, even in things remote from warlike use, may 
 actually contribute importantly to enable a belligerent to 
 carry on his war : on the other hand, it would be a 
 palpably exorbitant pretension in a belligerent to require 
 all neutral States to put an end to their trade with his 
 enemy. Only a Napoleon, at the giddy height of his pre- 
 dominance, could make such a claim ; l and it is not likely 
 
 " during the eighteenth century it was an undisputed doctrine that a neutral 
 State might grant a passage through its territory to a belligerent army," 
 the most recent authors express a contrary opinion, and "no direct attempt 
 has been made since 1815 to take advantage of the asserted right." 
 
 1 I refer to the famous " Berlin Decree " (1806), by which all nations were 
 prohibited from all commerce or communication with the British Islands. 
 But the retaliatory Orders in Council of the English Government (1807), 
 proclaiming a blockade of France and the States under her sway, were 
 scarcely less monstrous, except that they were retaliatory.
 
 276 ELEMENTS OF POLITICS CHAP. 
 
 to be repeated. Some compromise, then, is needed between 
 the claim of the neutral to be undisturbed in his trade, 
 and the claim of the belligerent that his enemy shall not 
 be aided. 
 
 The best compromise seems to be that no private trade 
 except to some extent trade in the actual munitions of 
 war should be regarded as an offence on the part of the 
 neutral State of which the trader is a member ; but that 
 the belligerent should have a right to check such trade, 
 and confiscate the wares, in all cases in which they are 
 calculated to be of special utility to his enemy i.e. either 
 (1) when the commodities are of a kind adapted for military 
 use by the enemy, or (2) when the belligerent's own military 
 operations are effectively directed to the cutting off of all 
 supplies from some part of the enemy's territory. In the 
 former case the belligerent would be allowed to confiscate 
 the commodities as " contraband of war " ; in the latter he 
 would confiscate them on the ground of an attempt to break 
 through a " blockade." The precise degree of adaptation to 
 military use required to justify the treating of wares as 
 contraband, and the precise conditions under which a blockade 
 is to be considered, must be determined on the basis of ex- 
 perience by usage, or arrived at by agreement among the 
 leading States. 1 
 
 I have said that no trade should be regarded as an 
 offence on the part of a State, " except to some extent trade 
 in the actual munitions of war." There is one special case 
 in which it certainly seems best, in the interests of peace, 
 that this trade should be definitely prohibited ; i.e. where 
 the process of exporting munitions is easily perverted into 
 the distinct violation of neutrality before noticed, which 
 consists in allowing the neutral country to be used as a 
 
 1 Thus, it has to be determined whether horses are contraband, or ship 
 timber, and other materials of naval construction, or coal sent directly for 
 the use of war-ships, or provisions and clothing sent for the use of soldiers. 
 So again, though it is clear that a naval blockade must be maintained by 
 forces at least sufficient to render egress or ingress dangerous to the ship 
 attempting it, some further definition is needed as to the extent to which 
 the danger should go.
 
 xvi THE REGULATION OF WAR 277 
 
 basis for military operations. The most important example 
 of this is the trade in armed ships; since an armed ship 
 sent forth as an article of export is so easily changed into 
 a ship adequately equipped and manned for war, that a 
 State which allows such export at the risk of the private 
 exporter like other contraband trade will find it hard 
 practically to prevent its country from being made the 
 source of a hostile expedition. 
 
 In the above discussion I have said nothing of the 
 formalities that should accompany the commencement of a 
 war, a point to which international jurists have given 
 serious attention. I conceive that they have usually some- 
 what exaggerated its importance. It is no doubt desirable 
 that any hostile act commencing a war should be preceded 
 by a formal notice, and accompanied by a formal justification 
 of the resort to violence ; but it is more important that 
 war should be really resorted to only when redress for 
 wrong has been refused ; and the process of asking for 
 redress will involve a practical warning that war is im- 
 pending in case of refusal. 
 
 5. It is a question of some interest how far such 
 regulations as I have sketched out are applicable to civil 
 war. Let us consider first the relation between the belli- 
 gerents though it is not strictly an " external " relation. 
 It is clear that the reasons above given for limiting the 
 mischief of war in various ways, so far as it falls on com- 
 batants, apply equally where the war is between two parts 
 of the same community, except in the one case of the 
 treatment of prisoners. In this case the rule that restricts 
 a belligerent's right over his captives, to that of detention 
 for the purpose of disablement during the war, comes into 
 conflict with the right of a government to treat rebels as 
 criminals. It is admitted by all reasonable persons that 
 it is the imperative duty of every government to punish 
 wrongful violence directed against itself like other wrongful 
 violence and even with peculiar severity, on account of 
 the widespread evils resulting from anarchy : and so long 
 as other States are not prepared to intervene in a hostile
 
 278 ELEMENTS OF POLITICS CHAP. 
 
 way, they must allow a government contending against an 
 insurrection to assume the right to treat the insurgents as 
 criminals. I conceive, however, that the mere extent and 
 strength of an insurrection may be reasonable grounds for 
 condemning the exercise of this right ; partly because they 
 afford a presumption that the insurgents have grievances 
 justifying a forcible attempt at redress ; partly because of 
 the danger of provoking reprisals, and of causing intense 
 and widespread bitterness that would long outlive the 
 war. 
 
 No general rule, however, can be laid down for deter- 
 mining exactly when a government is wrong in refusing to 
 insurgents, if captured, the full rights of prisoners of war. 
 It is somewhat easier to define the point at which they are 
 entitled to the privileges of belligerents at the hands of 
 neutrals ; since in this latter case the question is simply 
 one of military fact, and as such it is not unlikely to be 
 implicitly decided by the established government of the 
 divided community, before neutrals have occasion to con- 
 sider it. For if this government claims the right to take 
 any war-measure injuriously affecting the interests of neutrals 
 such as blockading ports or capturing contraband of war 
 it cannot reasonably complain that the insurgents, whom 
 it has thus by implication declared to be belligerents, should 
 be recognised as such by other States. It is, indeed, possible 
 that the government, to avoid this implication, may try to 
 throw what is substantially a war -measure into a non-warlike 
 form ; for instance, instead of proclaiming the blockade of 
 certain ports, it may simply declare them closed against 
 trade. Such a measure would, on the principle applied in 
 the preceding chapter, be within the strict international 
 right of the government adopting it in time of peace 
 though it would be unfriendly unless justified by grave 
 emergency ; but if it were adopted in time of civil war, it 
 would force neutrals to examine whether the ports in ques- 
 tion were de facto under the control of the government 
 claiming to close them ; and if they were actually in the 
 hands of the insurgents, the measure would justify neutrals
 
 xvi THE REGULA TION OF WAR 279 
 
 in recognising the latter as belligerents, no less than if it 
 had been openly a proclamation of blockade. 
 
 6. In considering such rules of international duty, 
 applicable to the conditions of war, as seem capable of 
 being effectively maintained by the consensus of civilised 
 communities, I have as was before explained left out of 
 consideration the justice of the war on either side. But 
 can we do this completely when we pass to consider the 
 validity of the results of victory in war ? Can we regard 
 as finally and permanently binding an arrangement to 
 which a community is forced to agree by the pressure of 
 superior force exercised throughout in an unjust cause ? I 
 do not think that an affirmative answer to this question 
 would be supported by general moral opinion ; nor do I 
 think that it would conduce to the general happiness of 
 civilised mankind that such a rule should be so supported : 
 the prospect it would hold out of securely enjoying the 
 gains of a skilfully timed act of unscrupulous brigandage 
 would be too strong a temptation for statesmen and States. 
 On the other hand, as was before said, to treat unjust 
 force as altogether invalidating obligations deliberately 
 assumed by States under its pressure would obviously tend 
 to aggravate the evils of unjust victory ; as the unjust 
 victor, being unable to rely on the promises of the van- 
 quished community, would feel driven by self-interest to 
 crush it utterly. 
 
 Between these dangers we have to take refuge in a 
 somewhat rough compromise, allowing a certain jural force 
 to treaty obligations imposed by unjust victors, but not the 
 same as if they were free from the taint of injustice : and 
 this view must be extended to conditions imposed by just 
 victory, when they are clearly in excess of what is required 
 for due redress and reasonable security for the future. I 
 do not affirm that the compromise here suggested is the 
 best attainable ; but I think that it should not be hastily 
 rejected because it is unsatisfactory : as my position is that 
 the conditions of the problem inevitably exclude a satis- 
 factory solution just because war is an essentially un-
 
 28o ELEMENTS OF POLITICS CHAP. 
 
 satisfactory means of preventing or remedying international 
 wrongs. 1 
 
 In order to formulate more precisely the suggested com- 
 promise, it is convenient to distinguish two main species of a 
 victor's conditions: (1) cessions 2 of territory that though 
 usually defined and formally admitted in a treaty may 
 sometimes be realised without any express contract at all, 
 simply by the tacit recognition of the changes of dominion 
 brought about by military force ; and (2) contracts in 
 the narrower sense i.e. engagements on the part of the 
 vanquished community, to be fulfilled at some future time. 
 Where victory in war has led to a transfer of territory, 
 the question of fidelity to engagements seems to be only of 
 secondary importance : the most important question relates 
 to the moral or jural situation that results from complete 
 though possibly tacit acquiescence in the loss of 
 territory. In short, we here come upon the question of 
 the "Eight of .Conquest" reserved in a previous chapter 
 (XIV.). In considering this question, a broad distinction 
 has to be drawn between territory whose inhabitants really 
 formed one nation with the community from which the 
 treaty has cut them off, and territory that was merely under 
 the dominion of the vanquished State, but not inhabited by 
 persons having any strong preference for the government 
 that they obeyed. In the former case the cession involves 
 the dismemberment of the vanquished nation, unless the 
 whole portion of it occupying the ceded territory is willing 
 to submit to the sacrifice of quitting its native soil. The 
 imposition of these alternatives seems an excessive punish- 
 ment, except for very outrageous or frequently repeated 
 international crimes ; accordingly, I conceive that a nation 
 subjected to such a punishment would ordinarily incur no 
 moral condemnation for an attempt to recover its ceded 
 
 1 I may perhaps add that a contemplation of the insoluble difficulties of 
 the problem from a jural point of view has a useful effect in impressing on 
 the mind the essential barbarism of war, however ordered and regulated. 
 
 2 Such cessions are, of course, "contracts" in the wider sense in which 
 the term includes transfers of property between individuals ; but not in the 
 narrower and more usual sense.
 
 xvi THE REGULATION OF WAR 281 
 
 territory, in spite of any treaty of cession, so soon as any 
 change in the political situation gave a reasonable prospect 
 of success in such an attempt. And this, of course, would 
 be still more clearly the case, if the war that led to the 
 conquest had been generally recognised as a war of unjust 
 aggression. It will therefore be in general harmony with 
 current moral opinion to lay down that a formal cession of 
 territory imposed by wrongful force ought not to be taken 
 to bind the vanquished to more than a complete temporary 
 suspension of hostilities, terminable at any time by the 
 wronged State, under the same conditions under which the 
 rebellion of an admittedly oppressed section of a State 
 would be generally judged to be legitimate. For we must, 
 at the^same time, distinctly recognise that by this temporary 
 submission of the vanquished whether express or tacit 
 a new political order is initiated, which, though originally 
 without a moral basis, may in time acquire such a basis, 
 from a change in the sentiments of the inhabitants of the 
 territory transferred : since it is always possible that 
 through the effect of time and habit and mild govern- 
 ment, and perhaps the voluntary exile of those who feel 
 the old patriotism most keenly, the majority of the trans- 
 ferred population may cease to desire re-union to the State 
 from which they were torn away. When this change has 
 taken place, the moral effect of the unjust transfer must 
 be regarded as obliterated : so that any attempt to recover 
 the transferred territory becomes itself an aggression : 
 though, of course, there may be a long period during which 
 the preponderant sentiment of the transferred population is 
 doubtful, and the right and wrong of a war for the recovery 
 of the lost territory is correspondingly obscure. 
 
 So far we have been considering the case of a partial 
 transfer of territory, which still leaves the State from which 
 it has been transferred in complete political independence. 
 But it seems clear that the case of a complete forcible 
 absorption of an independent civilised nation, 1 or its re- 
 
 1 I imply, by using the term " nation," that the State thus destroyed is 
 not merely what has before been called " inorganic." Cf. ante. Chap. XIV. 4.
 
 282 ELEMENTS OF POLITICS CHAP. 
 
 duction to a dependent condition, is to be dealt with on 
 the same principle. We may lay down that such conquest 
 can only be justified by extreme international misconduct, 
 or very prolonged and dangerous internal disorder and 
 anarchy in the State whose independent existence is thus 
 destroyed ; at any rate, if it is not indisputably and 
 markedly less civilised than the States absorbing it. Hence, 
 we should not ordinarily condemn rebellion supposing a 
 reasonable prospect of success on the part of any such 
 conquered nation, whatever formal submission it had made 
 to its conquerors, so long as the old national sentiment 
 remained predominant : but in proportion as the old 
 patriotism had diminished in intensity or range of diffusion, 
 the disturbance of the established order would seem to lose 
 its justification. 
 
 It is on these principles, I conceive, that an attempt to 
 restore Poland, or to recover Alsace and Lorraine for France, 
 would now be judged in the court of public opinion. 
 
 The case is different if the inhabitants of the territory 
 ceded were at the time of the transfer not really united in 
 national sentiment to the rest of the State from which 
 they are transferred. Even if such cession had been caused 
 by war recognised as clearly unjust, I do not think that the 
 vanquished State would be held justified in recommencing 
 the war merely in order to recover its dominion over an 
 alien people whose territory it had formally ceded. I con- 
 ceive, indeed, that the common opinion of civilised mankind 
 rightly approves or tolerates this kind of alien rule when 
 it is thought to have the good effect of extending what is 
 believed to be a higher civilisation among the people ruled ; 
 but the disadvantage to the latter of a violent change in 
 its rulers is so great and manifest, that even if a change of 
 rule has been brought about unjustly as between the dis- 
 possessed and the dispossessing governments it would be 
 generally better that the result should remain undisturbed, 
 so long as the new rule was not materially inferior to 
 the old. On the other hand, if the dominion transferred 
 by war is dominion over an unwilling people equal in
 
 xvi THE REGULATION OF WAR 283 
 
 civilisation to the foreigners who rule it, I do not think 
 that either the right of the older government to recover its 
 alien subjects, or the right of the victor to keep them, 
 ought to have, or would have, any important support in 
 the common moral sentiment of the civilised world; only 
 the State that is at any particular time the aggressor 
 should incur disapproval as a disturber of international 
 peace. 
 
 I turn now to the case of international contracts in the 
 narrower sense, imposed as a result of war. Here we have 
 especially to deal with tributes, and with engagements 
 diminishing the independence or restricting the military 
 force : such as an engagement not to fortify certain towns, 
 or not to keep soldiers or ships of war beyond a certain fixed 
 number or in certain places. I conceive that any contract 
 of this kind that seriously impaired the strength or well- 
 being of the State forced to make it ought not to be held 
 to be permanently binding, unless the war that led to the 
 dictation of the contract was regarded as manifestly just 
 on the victor's side and the contract itself necessary to his 
 security : though it would be held to be strictly binding 
 for a time. The limit of the duration of its practical 
 validity cannot, of course, be definitely fixed ; but it would 
 seem to depend not so much on the mere lapse of time as 
 on the amount of political change that has intervened ; and 
 also partly on the recognised oppressiveness of the condition 
 that it is desired to repudiate. As I have said, I am well 
 aware that this is an unsatisfactory answer to the perplex- 
 ing question that we are considering; but I do not see 
 that any more satisfactory solution of it is available, so 
 long as the method of settling international disputes by 
 war has to be retained. 
 
 I have now to observe that the difficulties with which 
 I have been dealing would be met by many writers on 
 " International Law," by introducing the distinction between 
 " law " and " morality." Legally, it would be said, every 
 contract for perpetuity must be held to be permanently 
 binding, unless it pledges to illegal or immoral conduct, or
 
 284 ELEMENTS OF POLITICS CHAP, xvi 
 
 unless " anything which formed an implied condition of its 
 obligatory force is materially changed " l as, for instance, 
 if the other party violates stipulations of the treaty or 
 other rights of the State in question but it would be 
 vaguely admitted that a nation would sometimes be morally 
 excused for a breach of its legal obligations. I do not 
 reject this distinction : but its admission requires us to 
 consider carefully the precise meaning and value of this 
 antithesis of " legal " and " moral " in international relations 
 a fundamental question which it has seemed best to 
 reserve for a separate chapter. 
 
 1 Hall, p. 321.
 
 CHAPTEE XVII 
 
 INTERNATIONAL LAW AND MORALITY 
 
 1. IN the two preceding chapters I have been mainly 
 engaged in working out in a summary form the chief sub- 
 ordinate rules in which the general principle of mutual 
 non-interference may most fitly be realised, in its applica- 
 tion to the existing circumstances of civilised States. In 
 so doing, I have found it convenient to refer largely to the 
 received rules and customary practices of States in their 
 external relations, as the best way of giving definiteness to 
 general maxims which a merely abstract consideration of 
 the subject inevitably leaves somewhat vague. 
 
 In the function of the expositor of international law as 
 commonly recognised, the relation of the two parts of the 
 procedure just described deduction from principles and 
 ascertainment of accepted rules and usages is inverted. 
 The expositor of international law is primarily concerned 
 with ascertainment of the rules of international behaviour, 
 that can fairly be said to be received or " established " or, 
 at least, of such of these rules as can claim to be " laws." 
 He has only to refer to principles when he finds doubt and 
 disagreement as to what rule actually is established, or 
 when a novel case has to be discussed to which the 
 established rules are not clearly applicable. 
 
 The importance of both elements of this work the 
 ascertainment of usage by reference either to the practice of 
 nations or to clauses in treaties and admissions in argument, 
 and the correction of usage by reference to principles 
 
 285
 
 286 ELEMENTS OF POLITICS CHAP. 
 
 seems to me undeniable ; I cannot doubt that, without it, 
 the moral opinion and sentiment of civilised mankind, and 
 their consciousness of their common interest in the main- 
 tenance of international peace and order, would be even less 
 effective than they now are in checking reckless encroach- 
 ments and violent retaliations, and promoting a peaceful 
 solution of minor collisions of interest among States. But 
 as was before said it may be reasonably doubted whether 
 any system of rules thus worked out is properly to be 
 called " law " : and, in fact, the propriety of this appellation 
 has been emphatically denied in England by Austin and 
 his followers, who consider that it ought rather to be 
 called "positive international morality." The suggested 
 term can easily be shown to be unsuitable : but I think 
 that it is instructive to discuss the grounds on which its 
 adoption is urged. For we shall find that the system of 
 rules commonly called " international law," while it differs 
 importantly both from the positive law of a modern State 
 and from its positive morality, may be usefully compared 
 to both, being more like the former in some points and 
 the latter in others : and that we tend to gain a clearer 
 conception of it by observing the points of likeness and 
 difference in either comparison. 
 
 In making these observations it will be convenient to 
 recall the relations between Law and Positive Morality as 
 examined in Chapter XIII. I there pointed out the import- 
 ance of comparing these two systems of rules, both (1) in 
 respect of the motives by which conformity to them is 
 sought to be secured, and also (2) in respect of their pre- 
 cision and systematic coherence. Let us take the former 
 point of comparison first, and ask how far the sanctions of 
 so-called International Law the penalties attached to its 
 violation resemble the sanctions of the positive law estab- 
 lished within a State, and how far they resemble the sanctions 
 of positive morality. We can see at a glance that they 
 resemble both legal and moral sanctions in important ways : 
 the former in their possible intensity, the physical violence 
 that they may include ; and the latter in the indefiniteness
 
 xvn INTERNATIONAL LAW AND MORALITY 287 
 
 of their source and the uncertainty of their infliction. It is 
 doubtful what States will express disapproval of any breach 
 of a recognised international rule, and whether any State 
 will inflict any further penalty beyond expression of dis- 
 approval : but if any State does pass from words to deeds, 
 it is likely to proceed to that extreme of physical violence 
 which we call war. 
 
 In considering war, however, as the ultimate sanction 
 of international rules, we are met by the distinction noticed 
 in Chapter XV. between rules of strict international duty, 
 to the performance of which a State may rightly be com- 
 pelled by force, and rules of international courtesy or comity, 
 the breach of which justifies generally speaking moral 
 disapprobation and complaint, but does not justify the use 
 of violence. This distinction corresponds broadly to the 
 distinction between legal and merely moral obligations in 
 the sphere of civil conduct : and I conceive that it is 
 generally accepted in practical as well as theoretical dis- 
 cussion of international relations. For instance, to take a 
 case of current interest, 1 I suppose that most American 
 politicians hold that Canada ought not to hamper as she 
 has hampered the free use of her fisheries by citizens of 
 the United States : but I suppose most of them would 
 admit that, according to the received rules of international 
 law, she ought not to be compelled by threat of force to 
 discontinue her restrictions ; or, to express it in the 
 received phraseology, that her behaviour, though unfriendly, 
 is not " illegal," and that the only " legal " mode of com- 
 pelling her to alter it is by retaliatory acts of a similar 
 kind unfriendly, but not violations of strict right. 
 
 2. This application of the distinction of " legal " and 
 " moral " to international duties is, I think, convenient ; and 
 its convenience seems a sufficient reason for retaining the old 
 term " international law," with proper explanations. At the 
 same time, if we retain it we can hardly find) the decisive 
 criterion for applying the distinction in the difference of the 
 sanctions effectively attached to the two kinds of rules 
 
 1 In 1891.
 
 288 ELEMENTS OF POLITICS CHAP. 
 
 respectively ; since we must admit that civilised States have 
 often made, and more often threatened, war to compel other 
 States to acts or abstinences which have not been imposed 
 on the latter by the generally accepted rules of international 
 law : and in many cases it cannot be said that the coercion 
 that they have exercised in such cases has met with general 
 disapproval. For instance, it seems to have been gener- 
 ally held in the eighteenth century in Europe that a State 
 may reasonably and properly go to war merely to prevent a 
 formidable aggrandisement of a neighbour and maintain the 
 " balance of power " ; but it has never been a recognised rule 
 of international law that a State may not grow so strong 
 as to alarm its neighbours. So again, in more recent times 
 wars to liberate " oppressed nationalities," or to promote the 
 union into one State of divided groups of persons having a 
 common nationality, have been widely approved ; though it 
 has certainly never been held to be a rule of strict inter- 
 national duty that a government should grant independence to 
 any portion of its subjects who dislike its rule, if they belong 
 to a different nationality from the rest. In short, if we con- 
 sider the practice of modern States, we have to recognise 
 that, besides the violent coercion exercised by States on each 
 other in consequence of alleged violations of international 
 law, coercion no less violent has been commonly exercised 
 without such justification, yet not generally disapproved ; 
 and therefore that we cannot effectively distinguish the rules 
 of international behaviour that are to be called laws by the 
 sanction actually attached to them. If we keep close to 
 actual facts, we can only define international law as a system 
 of rules to which it is generally held that States, under 
 ordinary circumstances, not only ought to conform, but may 
 legitimately be compelled to conform ; and which will 
 accordingly be applied, in deciding disputes between States, 
 by duly qualified arbitrators : l while we, at the same time, 
 admit that circumstances are liable to arise under which a 
 State will incur no general disapprobation for overriding 
 
 1 That is, unless the States that refer the dispute to arbitration expressly 
 agree upon any other rules.
 
 XVII INTERN A TIONAL LA W AND MORALITY 289 
 
 these rules, on the ground either of some imperative national 
 interest or some alleged higher principle of international 
 morality. 
 
 That this is an unsatisfactory state of things is clear : 
 and so long as it continues we cannot but expect as was 
 before said that the most important issues between States 
 will not be settled by arbitration. It may perhaps be said 
 that at least in the case of a conflict between the supposed 
 interest of any particular State and the received rules of 
 international duty, the opinion of impartial persons ought 
 to be clearly declared against the State in question. And 
 this seems to me undeniable when the conflict is clear : i.e. 
 when it is clearly for the interest of the community of 
 nations that a recognised rule should be observed, while it 
 is for the apparent or immediate interest of a particular 
 State to transgress it. But even in the private relations of 
 individuals in a modern civilised State cases occasionally 
 occur in which an individual is widely held excused for 
 breaking a rule which it is yet thought desirable to 
 maintain as law : and we must expect similar cases of 
 approved or excused illegality to be more frequent in inter- 
 national relations, owing to the comparative fewness of the 
 members of the society of civilised States, and the far greater 
 importance of any one State relatively to the whole society. 
 More commonly, too, there would not in such a case be an 
 undeniable conflict of national interest with a clear rule 
 of international duty ; the promptings of the discordant 
 interests of States would be combined with divergent 
 views of imperfectly defined rights. Such a combination 
 is necessarily favoured by the inevitably less perfect 
 definition of international as compared with ordinary 
 civil rights : owing partly to the absence of a common 
 government in the society of nations, partly to the im- 
 perfect internal cohesion of many States, and partly to 
 the great differences in the degree of civilisation attained 
 by different human communities. For instance, the first of 
 these causes renders necessary and legitimate an extension 
 of the right of self-defence which it is difficu t precisely to 
 
 u
 
 290 ELEMENTS OF POLITICS CHAP. 
 
 limit. War must be admitted to be justified not only by 
 actual aggression, real or alleged, but also by unmistakable 
 manifestations of an aggressive design : a nation unmis- 
 takably threatened can hardly be condemned for striking 
 the first blow, if by so doing it gains an important 
 advantage in self-defence. But this enlarged right of self- 
 protection is easily extended to justify anticipation of a 
 blow that is merely feared, not really threatened : and thus 
 by gradual transitions we are led to a more or less plausible 
 upology for hostile interference merely to prevent a formid- 
 able increase of strength on the part of a neighbour. I 
 think that moral opinion should set itself steadily against 
 ihis latter extension of the right of self-protection : still, it 
 is obviously difficult to define exactly the degree of danger 
 that would justify hostile action. 
 
 3. In other cases it is not so much the claim of 
 national interest admitted as semi-legitimate, but rather the 
 development of international morality, which comes into 
 conflict with recognised international law. Thus (e.g.} the 
 restriction of the right of conquest, which in the last 
 chapter I took to be commonly accepted, is due to the 
 increased recognition which the rights of nationalities have 
 received in recent times ; a recognition that in other ways 
 inconveniently clashes with the established political order 
 of modern Europe. In considering this interference of 
 gradually changing international morality with the estab- 
 lished rules of strict international duty, we are led naturally 
 to the second part of the comparison proposed at the outset 
 of this chapter : that is, to the question whether the system 
 of rules commonly recognised as International Law resembles 
 Positive Law within a State or Positive Morality most, 
 in respect of the elaborated precision, systematic coherence, 
 and clear acceptance of its rules. 
 
 For it follows inevitably from the absence of any recog- 
 nised regular organ with authority to settle disputed points, 
 that in international relations the important distinction 
 between laws actually established and laws that a statesman 
 or jurist may think ought to be established is not clear and
 
 xvn INTERNATIONAL LAW AND MORALITY 291 
 
 unmistakable, nor the transition from the latter to the 
 former abrupt and definite, as it is in the main in the 
 sphere of civil law in a modern State. In any survey of 
 social relations within any community, we are pretty sure 
 to find a certain number of duties which it is recognised 
 that men are not legally bound to fulfil, though there is a 
 strong opinion that the legal obligation ought to be imposed. 
 However much I may think that a man ought to be punished 
 for mischief he has caused, and however decidedly public 
 opinion may be on my side, still if he has not committed 
 any act that has already been determined to be a crime 
 either by precedent or by statute, the judge if really an 
 expert will not condemn him to punishment : and if I try 
 to supplement this defect in the legal system by private 
 violence, the judge will condemn me. This distinction was 
 not apprehended with perfect clearness, so long as the notion 
 of a Law of Nature, having a validity prior to and 
 independent of positive law, had a leading place among 
 jural conceptions : but since it has come to be recognised 
 that the proper source of new law is a special legislative 
 organ distinct from the judicature, it is clearly seen that 
 there are two distinct species or grades of " what ought to 
 be," in respect of legal coercion : there are rules which the 
 judge actually ought to enforce by punishing the violation, 
 and there are other rules which (in a sense) it ought to be 
 his duty to enforce, but is not. 
 
 In the case, however, of positive morality a similar dis- 
 tinction obviously cannot be applied without qualification : 
 since moral rules that men generally think ought to be 
 accepted as actually binding must ipso facto be accepted : 
 it is this general thought which constitutes their acceptance. 
 Further, though careful reflection will enable a man to 
 distinguish between the generally accepted moral rules of 
 his own age and country and the rules that the reflective 
 individual thinks ought to be accepted, still the distinction 
 is obscure and vague to most minds as regards their own 
 morality here and now, though sufficiently clear as regards 
 morality in past ages or in China. If a " plain honest man "
 
 292 ELEMENTS Ut> POLITICS CHAP. 
 
 feels himself disposed to condemn any conduct, he is apt to 
 think that all plain honest men must equally condemn it, if 
 the circumstances of the case were clearly brought before 
 them ; hence it is his habit to express his personal condemna- 
 tion in the name of common sense : he does not habitually 
 recognise as possible a definite divergence between his own 
 view of what ought to be and the positive morality of his age 
 and country, unless such possibility has been brought home 
 to him by some exceptionally sharp collision between the 
 two. Moreover, it often happens that when such a con- 
 flict of opinions is disclosed on a moral question, there is 
 really some doubt as to what rule is generally accepted, or 
 whether any can be said to be so : for a dissident individual 
 rarely stands alone, nor is it easy to say what majority 
 constitutes general acceptance, or whether there is such 
 a majority in any particular case of controversy. Again, in 
 judging of any moral claim made by an individual or a 
 class upon other individuals or classes, the divergence 
 between the customary actions of men and their customary 
 judgments of the actions of others introduces a further 
 doubt as to the standard that ought to be applied : and the 
 previous conduct of the particular claimant becomes an 
 important consideration ; since a man would not ordinarily 
 be held justified in claiming from another a service that he 
 had himself refused in a similar case. 
 
 In all these respects much of what is commonly expounded 
 as International Law seems certainly to bear a closer 
 resemblance to the moral than to the legal system of rules 
 governing civil relations. Even in the processes of thought of 
 many international jurists the distinction between what is 
 and what ought to be an established rule seems to be obscure 
 and imperfect. Both in theoretical discussions on inter- 
 national duty, and in the practical debates on such questions 
 between States, there appears a strong indisposition to 
 recognise that a rule which seems to the disputant right is 
 not an accepted rule. Hence it is a common experience 
 that treaties which profess to be merely declaratory of 
 international law as it is, palpably go beyond a mere state-
 
 xvn INTERNATIONAL LAW AND MORALITY 293 
 
 ment of the rules hitherto accepted; under the form of 
 mere exposition they really aim at innovation : and the 
 procedure is partly justified, because, owing to the absence 
 of any regular legislative authority, the transitions by 
 which prevalent opinions as to what international law ought 
 to be pass into recognised rules of international law as it 
 is, cannot, generally speaking, be made perfectly clear and 
 definite. Changes must from time to time take place in 
 the generally accepted views as to the strict international 
 duties and rights of States ; and when any such change is 
 taking place, it must be expected that there will be differ- 
 ences of opinion both as to what constitutes general accept- 
 ance, and whether this exists in any particular case : and 
 that these differences will be expressed in assertions by each 
 disputant that the established rule is what he thinks it 
 ought to be. 
 
 4. There are, however, considerations on the other 
 side, leading us to assign to international law, in respect of 
 the normal process of changing it, an intermediate position 
 between ordinary law and ordinary morality, as they exist in 
 a modern State. Changes in ordinary law are, as we have 
 seen, mainly introduced in modern States by the express 
 resolutions of supreme legislative assemblies or councils, 
 acting collectively after deliberative debate. Changes in 
 Positive Morality, on the other hand, can only be brought 
 about gradually by the unconcerted agreement of a number 
 of individuals, judging of others and acting towards them as 
 individuals, in the exercise of their legal freedom of choice 
 in social relations. Now in the case of international law, 
 though there is no regular organ of legislative innovation, 
 the concerted action of States, in the way of treaties 
 and conventions, plays an important part in the intro- 
 duction of changes, to which there is no counterpart 
 in the development of positive morality. This is due 
 chiefly to the limited number of the States among whom 
 the system of rules and usages that constitute modern 
 international law is actually established : they are so few in 
 all that the agreement of even a small group of them to
 
 394 ELEMENTS OF POLITICS CHAP. 
 
 adopt a new rule may be an important in many cases even 
 a decisive step towards the general acceptance of this 
 rule. 
 
 The degree of influence which such a treaty or conven- 
 tion will have will no doubt be very different in different 
 cases. It will depend partly on the more or less aggressive 
 character of the agreement : i.e. it will be the most intense if 
 the concerting States agree not merely to adopt a new rule 
 as governing their own mutual relations, but also to treat 
 the non-observance of this rule by any other State as a 
 breach of international duty : since, in this latter case, they 
 attach a sanction to the rule which tends to make it prac- 
 tically obligatory on others than the contracting parties. 
 The concerting States are not indeed likely to go as far as 
 this in enforcing an avowed innovation in usage, unless the 
 combination feels itself to have overwhelming force : but 
 even if the new rule is understood to be only applicable to 
 States who voluntarily accept it, still, the adhesion of a 
 powerful group of States may partly express, partly cause, a 
 consensus of opinion to which even nations who do not share 
 it may find it convenient to yield. In this way the innova- 
 tion may gradually come to be incorporated in the generally 
 accepted system of rules. 
 
 Further, the concerted action of which I have been 
 speaking is not the only method by which the rules of inter- 
 national law have been modified ; it is undeniable that 
 international law, like civil law, has been gradually made 
 more definite and coherent by a series of arguments of the 
 ordinary legal kind, terminated in some cases by judicial or 
 quasi-judicial decisions ; and it is conceivable that this 
 process might be continued until international law should 
 reach something like the systematic precision which parts 
 of our own common law have attained through judicial 
 interpretation alone. It would seem, however, that this 
 process has been applied and can be expected to be 
 applied to international law only to a very limited extent, 
 and in relation to certain classes of questions. It has 
 been most operative in that part of the rules governing
 
 xvn INTERNATIONAL LAW AND MORALITY 295 
 
 the relations of belligerents and neutrals which apply 
 primarily to the conduct and treatment of individual 
 members of neutral States; especially the rules relating 
 to blockade and contraband of war, which are applied 
 by the prize-courts of each belligerent State to determine 
 the legitimacy of captures of the ships or other property 
 of neutrals. The force that causes the decision of such a 
 court to take effect is no doubt primarily the organised 
 physical force of the belligerent State to which the Court 
 belongs : but if we consider the intellectual process by which 
 the decision is arrived at, it is plain that the rules applied are 
 not conceived as laws formed by each nation for itself : they 
 are conceived as rules whose validity depends on their 
 general acceptance by civilised nations, and in the reasoning 
 by which doubtful points in their definition are determined 
 precedents, drawn from the practice of other nations, are 
 allowed due weight. No doubt the prize-courts of each 
 belligerent have a certain tendency to define and interpret 
 the international rules in question in the interest of their 
 own country ; but this tendency has been kept in check, 
 partly by the judicial habits of mind of the persons with 
 whom the decision has rested, partly by the unimportance 
 to the belligerent community of the gain to be made by 
 encroaching on a neutral's rights, as compared with the 
 danger of provoking the neutral's hostility in the crisis 
 of war. 
 
 So again, when questions arise as to alleged wrongs 
 received by individuals from foreign States, even when they 
 are argued between diplomatists and not before judges, the 
 discussion is still quasi-legal in method, and the decision is 
 usually assumed to be arrived at by reference to international 
 precedents and principles having international acceptance. 
 And the same may be said of other disputes between States 
 on points of minor importance : e.g. as to the national 
 character of particular persons ; as to the treatment of aliens 
 by the State in which they are residing whether this is 
 complained of as too unfavourable, or, in the case of political 
 fugitives, as too favourable ; as to the rights and duties
 
 296 ELEMENTS OF POLITICS CHAP. 
 
 of ships in territorial waters ; the privileges of ambassadors ; 
 and similar matters. Finally, in the case of all questions 
 submitted to arbitration, the point at issue is practically 
 determined by experts selected for their competence as 
 lawyers, who are supposed to employ and usually do em- 
 ploy the same careful and impartial comparison of rules 
 and precedents as is proper in determining a point of civil 
 law. In these various ways a body of definite rules of 
 international conduct has gradually been formed, which 
 certainly bears, regarded as an intelligible system, a closer 
 resemblance to the positive law than it does to the positive 
 morality of a modern State. 
 
 It does not however appear that, on the most important 
 questions that lead to disputes between States, the currently 
 accepted principles for judging of international rights and 
 wrongs have as yet been brought to legal precision and 
 systematic coherence, in the manner above described : and 
 it seems to me too sanguine to hope that they ever will be 
 so brought, so long as States retain their independence, 
 unless the moral and intellectual nature of the average 
 human beings composing these States undergoes a radical 
 change. Consider, for example, either the limits of the 
 right of national self-defence against anticipated danger, 
 noticed in a previous section ; or the legitimacy of inter- 
 vention, whether in the interest of the intervening State, 
 or of the State interfered with ; or the extent of the right 
 of conquest, or of the right of renewing war to obliterate 
 the effects of conquest ; it is difficult to conceive how any 
 of the current doubts and disagreements on these funda- 
 mental points could be cleared up by any improved 
 definitions of such rules as judges and arbitrators could 
 apply. And I conceive that it will be found very difficult 
 to regulate satisfactorily, in this quasi-legal way, the process 
 of expansion into territory not yet occupied by civilised 
 nations, of which I am to speak in the next chapter. The 
 decision on such points as these must for a long time to 
 come at any rate be left to international morality, in the 
 sense in which it is distinguished from law : and this may
 
 xvn INTERNATIONAL LAW AND MORALITY 297 
 
 be given as a final reason for not sharing the hopes of 
 certain optimists who look forward to getting rid of wars 
 between States by increasing the use of arbitration. But 
 though arbitration cannot bring in the reign of universal 
 peace, it may, I conceive, diminish the occasions of war to 
 an extent that should not be despised ; and whatever can 
 be done to increase the confidence of civilised States in 
 this method of settling minor disputes, is, in my view, a 
 valuable contribution to the welfare of civilised humanity. 
 And it is chiefly for this practical purpose that I am 
 anxious to retain the distinction between " international 
 law " and " international morality " ; using the former term 
 to denote a system of rules, which experts called on to 
 arbitrate between nations should apply impartially to such 
 cases as may be brought before them, employing a method 
 as analogous as possible to that of ordinary law-courts. I 
 conceive that the discussion of jurists, if duly aided by 
 conventions among States, may succeed in rendering this 
 system somewhat more precise and consistent, and that 
 their efforts ought to be directed to this end: although, 
 after all, the rules thus formulated can only have a limited 
 range and efficacy in governing the relations of States : 
 and the difficult task of judging of the deepest issues on 
 which the conflicts of nations have hitherto turned must 
 always be left to the vaguer and more disputed set of 
 principles that we must regard as belonging to international 
 morality.
 
 CHAPTEK XVIII 
 
 PRINCIPLES OF EXTERNAL POLICY 
 
 1. IN the three preceding chapters we have been con- 
 sidering the rules of international duty that should be 
 maintained, by common opinion and as far as possible 
 applied in arbitration between States in the interest of 
 humanity at large. We have seen reason to adopt, at any 
 rate as regards the relations of civilised and well-ordered 
 States, a system analogous to what, in dealing with civil 
 relations, is called Individualism, of which the fundamental 
 rules prescribe avoidance of injury to person and property 
 and enforcement of contracts ; and we have examined the 
 modifications of these rules, rendered necessary by the 
 essential differences between States and individuals, 
 especially by the enlargement of the right and duty of 
 self-protection, consequent on the want of a common govern- 
 ment in the society of States. In the present chapter I 
 propose to contemplate international matters from a some- 
 what different point of view, and to consider the principles 
 and aims by which the action of a civilised government 
 should be determined in dealing with the external relations 
 of its State. 
 
 Here, first, a fundamental question has to be faced, as 
 regards the general relation of national interest to inter- 
 national duty. It is sometimes frankly affirmed, and more 
 often implied, in discussions on the principles of foreign 
 policy, that a State is not properly subject as an individual 
 is commonly held to be to any restraint of duty limiting 
 
 298
 
 CHAP, xvni PRINCIPLES OF EXTERNAL POLICY 299 
 
 the pursuit of its own interest : that its own interest is, 
 necessarily and properly, its paramount end; and that 
 when we affirm that it is bound to conform to any rules 
 of international duty we can only mean, or ought only to 
 mean, that such conformity will on the whole and in the 
 long run if not immediately be conducive to its national 
 interests. In my view all such statements are essentially 
 immoral. For a State, as for an individual, the ultimate 
 end and standard of right conduct is the happiness of all 
 who are, affected,; by its actions. It is of course true, for 
 an individual no less than for a State as the leading 
 utilitarian moralists have repeatedly and emphatically 
 affirmed that the general happiness is usually best pro- 
 moted by a concentration of effort on more limited ends. 
 As Austin puts it "The principle of general utility im- 
 periously demands that [every individual person] commonly 
 shall attend to his own rather than to the interests of 
 others : that he shall not habitually neglect that which 
 he knows accurately in order that he may habitually pursue 
 that which he knows imperfectly." But as the same 
 writer is careful to add " the principle of utility does 
 demand of us that we shall never pursue our own peculiar 
 good by means which are inconsistent with the general 
 good " : accordingly, in the exceptional cases in which the 
 interest of the part conflicts with the interest of the whole, 
 the interest of the part be it individual or State must 
 necessarily gave way. On this point of principle no com- 
 promise is possible, no hesitation admissible, no appeal to 
 experience relevant : the principle does not profess to pre- 
 scribe what states and individuals have done, but to prescribe 
 what they ought to do. At the same time, I think it 
 important not to exaggerate the divergence between the 
 private interest of any particular State and the general 
 interest of the community of nations. I conceive that it 
 will be usually the interest of any particular State to con- 
 form to what we have laid down as the rules of international 
 duty, so long as it has a reasonable expectation of similar 
 conformity on the part of its neighbours ; at any rate in
 
 300 ELEMENTS OF POLITICS CHAP. 
 
 dealing with civilised, coherent, and well-ordered States, in 
 whose case conquest could not be justified in the interest 
 of the conquered State as a means of getting rid of the evils 
 of disorder ; or in the interest of humanity at large as a 
 means of substituting a higher civilisation for a lower. 
 And so far as the past conduct of any foreign State shows 
 that reciprocal fulfilment of international duty cannot 
 reasonably be expected from it, any State that may have 
 to deal with it must, I conceive, be allowed in the interests 
 of humanity, the extension of the right of self-protection 
 which its own interests would prompt it to claim. From 
 any point of view, it must be held right for a State to 
 anticipate an attack which it has reasonable grounds for 
 regarding as imminent, to meet wiles with wiles, as well as 
 force with force, and in extreme cases to stamp out incur- 
 able international brigandage even by the severe measure 
 of annihilating the independent existence of the offending 
 State. 
 
 Again, it seems to be plain that, in its own interest, no 
 less than in that of humanity at large, a State should incur 
 some risk of sacrifice in order to avoid war, by accepting 
 arbitration on all points of minor importance, or negotiation 
 if an impartial arbiter cannot be found ; and that it should 
 make it a point of international policy to aim at improving 
 the machinery of arbitration. 
 
 It is a different question whether it is the right policy 
 to run the risk of war in order to prevent high-handed 
 aggression by another State against a third. As we have 
 seen, this cannot be imposed as a strict duty, on the view 
 of international duty that I have adopted : and for any 
 State to embark in a career of international knight-errantry, 
 and send its armies about to take part in remote quarrels 
 with which it had no special concern, would be hardly more 
 conducive to the interests of the civilised world than it 
 would be to those of the supposed quixotic community. 
 Still, where the assailant is clearly in the wrong, it would 
 seein to be the ultimate interest, on the whole, as well as 
 the duty, of any powerful neighbouring State even if its
 
 xvni PRINCIPLES OF EXTERNAL POLICY 301 
 
 own more obvious interests are not directly threatened to 
 manifest a general readiness to co-operate in forcible sup- 
 pression of the wrong. Indeed, unless we suppose that the 
 mere exercise of superior force is kept under some check by 
 the fear of the intervention of other States against palpable 
 injustice, war between States decidedly unequal in strength 
 will hardly retain its moral character at all : to treat it, 
 even so far as I have done, as a sanction against the breach 
 of international duty would be solemn trifling. And I 
 think that co-operation to prevent wanton breaches of 
 international peace is the best mode of preparing the way 
 for the ultimate federation of civilised States, to which I 
 look forward. But in the present stage of civilisation, it 
 would, I think, be a mistake to try to prevent wars alto- 
 gether in this way. We may hope to put down by it 
 palpable and high-handed aggression ; but it is not applicable 
 where there is a conflict of reasonable claims, too vague 
 and doubtful to be clearly settled by general consent, and 
 at the same time too serious to be submitted to arbitration. 
 We may illustrate this by the present relations of France 
 and Germany. Let it be granted l that the war of 1870-71 
 was substantially an aggression on the part of the French, 
 prompted by a quite inadmissible claim of France to prevent, 
 or obtain territorial compensation for, the alteration of the 
 balance of power caused by the unification of Germany : 
 and that Germany, therefore, having repelled the aggression, 
 had a right to take substantial guarantees against its 
 repetition at the expense of France. It will still be widely 
 held that the dismemberment actually inflicted was a 
 punishment in which no civilised nation can be expected 
 to acquiesce, so long as the portion torn away retains a 
 preponderant desire for reunion. Accordingly, if at the 
 present time France took an opportunity for going to war 
 with Germany for the recovery of Alsace and Lorraine, the 
 sympathies of impartial persons would largely incline in 
 
 1 This is the view that I myself take : but it is not universally admitted, 
 and I have no claim to decide ex cathedra a disputed question of historical 
 
 fact.
 
 302 ELEMENTS OF POLITICS CHAP. 
 
 favour of France : at the same time, the claim of Germany 
 to retain the provinces would seem at least so far defensible 
 that it could not be regarded as a clear duty of neighbouring 
 States to interfere on either side. 
 
 However this important question of policy is to be 
 determined, it will be admitted that, on one ground or 
 another, war must be regarded as a constant danger, the 
 preparation for which constitutes the most important part 
 of those internal functions of government which, as was 
 before noticed, are indissolubly connected with its external 
 functions. But as to the extent and manner of such pre- 
 paration I conceive that it is impossible to lay down any 
 useful general rules : the policy of each State must be so 
 largely determined by relations to its neighbours, which 
 vary from State to State, and may be fundamentally changed 
 from time to time. Thus, the policy of a relatively small 
 State will reasonably differ from that of a relatively large 
 one ; the policy of an island from that of a country with 
 continental neighbours ; and so forth. 
 
 So again, no general rules can be laid down as regards 
 alliances, beyond the statement before given of the strong 
 grounds for supporting purely defensive leagues as the best 
 substitute and preparation for a federation able to maintain 
 peace among civilised States. 
 
 2. So far I have been considering what should be done 
 by a particular State for the maintenance of the system of 
 restraints imposed on civilised States generally by the rules 
 of international duty ; I now pass to consider the relations 
 that any State should aim at establishing with alien com- 
 munities and territories, within the limits fixed by strict 
 international obligations. Here the most important ques- 
 tions are (I.) how far the government of a State should allow 
 (a) free trade that is, trade only hampered by taxes imposed 
 for the purpose of raising revenue between its subjects 
 and foreigners ; and (&) free immigration of aliens into its 
 territory : and (II.) how far it should aim at expansion 
 of territory, and absorption of the foreign communities 
 inhabiting the territories annexed.
 
 xvni PRINCIPLES OF EXTERNAL POLICY 303 
 
 I. A full discussion of the burning question of Free 
 Trade I consider more suitable to a treatise on political 
 economy. Here I will only say that the economic argument 
 for Free Trade which is a simple application of the general 
 argument for laisser faire, given in a previous chapter (X.) 
 is now generally admitted as decisive, when the matter is 
 considered from what I may call a cosmopolitan point of 
 view, i.e. in relation to the interests of the aggregate of the 
 States trading. This admission is most strikingly manifest 
 in the countries in which the faith in the benefits of pro- 
 tection to native industry is most strongly held ; since we 
 do not find that in any of these countries protection to 
 local industries from the competition of fellow-countrymen 
 is seriously advocated as a measure conducive to the 
 economic interests of the whole nation. For instance, in 
 the United States, which imposes high protective duties on 
 foreign imports, no political party so far as I know has 
 ever proposed to interfere with the present unrestricted 
 freedom of internal trade. 
 
 The question, however, is altered if we restrict our 
 regard to the sectional interest of the group of persons 
 inhabiting a particular portion of the whole region over 
 which trade is carried on, supposing them to constitute an 
 independent community. In the first place as J. S. Mill 
 has argued J it may in certain cases be economically 
 gainful to a country to impose protective duties " tempor- 
 arily, in hopes of neutralising a foreign industry, in itself 
 perfectly suitable to the circumstances of the country." 
 Doubtless such a duty if it is both needed and effective 
 imposes a tax on the consumers of the native product pro- 
 tected ; but it is possible that the cost thus incurred may 
 be compensated to the community through the ultimate 
 
 1 Political Economy, chap. x. 1. Theoretically, we have to recognise 
 that this argument may hold good from a cosmopolitan as well as from a 
 national point of view ; but the cases in which protection would be ex- 
 pedient on this ground from a cosmopolitan point of view supposing that 
 it could be confined to such cases are at any rate much rarer than those in 
 which it would be expedient from a national point of view, on the same 
 supposition.
 
 304 ELEMENTS OF POLITICS CHAP. 
 
 economic advantage of producing at home a commodity 
 previously imported ; although the initial outlay that would 
 be required to establish the industry without protection 
 could not be expected to be ultimately remunerative to any 
 private capitalist who undertook it. For the difficulties of 
 introducing an industry may be such that, when once over- 
 come by the original introducers, they would no longer 
 exist forj others in at all an equal degree ; so that, as soon 
 as the new industry begins to be profitable, competition is 
 likely to bring down prices so much, that though remunera- 
 tive to the later competitors, they would not compensate 
 the introducers of the industry for their initial outlay. 
 
 Secondly, for somewhat different reasons, it may possibly 
 be sometimes expedient on the whole to resist by import 
 duties an industrial change which unrestricted free trade 
 would cause ; because it is a matter of common experience 
 no less than a conclusion of general economic reasoning 
 that industrial improvements within a country may involve, 
 as their natural consequence, a transfer of population and 
 wealth from one part of the country to another. Suppose, 
 for instance, that an improvement takes place in a certain 
 manufacture in a district (A) favoured by the special 
 physical conditions of the district which enables the 
 manufacturers to cheapen their products so far that the 
 manufacturers of similar wares in another district (B) 
 cannot carry on their industry remuneratively. The 
 natural result will be that the manufacture in question 
 will gradually be abandoned in B ; and probably some of 
 the persons who would otherwise have been employed in it 
 will migrate out of B, either to supply the growing demand 
 for labour in A, or to seek some other employment which 
 the improvement in question will indirectly provide ; the 
 remaining inhabitants of A will get the products in question 
 cheaper, and thus the improvement will benefit all con- 
 cerned. Let us now suppose that districts A and B are in 
 different States, when the manufacturers of the former 
 obtain this decisive victory in industrial competition. 
 Then, if the products of A are freely admitted into B,
 
 xvni PRINCIPLES OF EXTERNAL POLICY 305 
 
 either the transfer of population will still take place as 
 above described, in which case the State containing A will 
 gain in population and wealth at the expense of the State 
 containing B ; or, if it does not take place, owing to the 
 dislike of the inhabitants of B to expatriation, it is conceiv- 
 able that the disturbance to industry caused by the change, 
 and the difficulty of finding profitable employment for the 
 persons engaged in the extinguished industry, may be evils 
 outweighing the gain to B from the change. 
 
 This last result, however, is very unlikely to occur in a 
 large country, with a variety of employments and labour 
 tolerably mobile : it is far more likely that the persons 
 thrown out of employment can be, without much difficulty, 
 employed somehow within the community in a manner 
 more useful socially than if they were artificially protected 
 in their old manufacture. And, as regards the case first 
 mentioned of temporary protection of naturally suitable 
 industries it would seem that the task of confining such 
 protection within the limits within which it would be really 
 advantageous to the community is too difficult and delicate 
 to be successfully performed by actual governments. Such 
 protection as actually applied is likely both to be too pro- 
 longed, and also to be used to foster weak industries that 
 have no chance of living without artificial support ; in 
 short, any gain that may be derived from it in particular 
 instances is likely to be outweighed by the indirect bad 
 consequences of deviating from the broad and simple rule of 
 free trade, and encouraging employers and labourers to look 
 to State help instead of self-help in any difficulty caused by 
 changes in industry and trade. 
 
 On the whole, therefore, I hold that apart from the 
 military considerations of which I shall presently speak 
 the commercial policy of modern States should keep aloof 
 from all attempts to protect native industry, even if each 
 State has regard exclusively to its own economic interests ; 
 not because it is impossible that such protection, if judi- 
 ciously introduced and limited, might not be occasionally 
 advantageous to the protecting country, but because a really 
 
 x
 
 306 ELEMENTS OF POLITICS CHAP. 
 
 judicious protection of native industry implies a wisdom 
 and strength on the part of government which we cannot 
 practically expect to obtain. 
 
 It does not follow that a rigid adhesion to the rule of 
 imposing import duties for revenue only is always expedient 
 in the case of a country surrounded as England is now 
 by neighbours more or less protectionist. Eetaliatory 
 import duties are essentially different from protective duties 
 in their primary aim and justification : although they may 
 often have protective effects, as, indeed, may be the case 
 with duties imposed for revenue only. Such retaliatory 
 duties, indeed, are not generally justifiable as is often 
 confusedly thought on the ground that the " one-sided 
 free trade " which will take place if they are not imposed 
 will be in itself disadvantageous. The mere fact that one 
 country (A) endeavours to exclude the imports of another 
 country (B) by protective duties does not make it directly 
 the interest of B to prevent its members from importing 
 the products of A ; since it gives us no reason for thinking 
 that such importation will be carried on unless it is, 
 under existing circumstances, the most economic mode of 
 supplying the needs of the inhabitants of B, and unless 
 the products imported can be paid directly or indirectly by 
 the products of the importing country. The only valid 
 argument for meeting the foreigner's protective duties by 
 retaliatory duties on his products is that such retaliation 
 may put the free trade country in a more favourable 
 position for getting rid of the foreign protective duties by 
 means of commercial treaties. How far this is a sufficient 
 reason for imposing import duties for other than revenue 
 purposes is not, I think, a question to which a general 
 theoretical answer is possible. 
 
 So far I have taken only economic considerations into 
 account, but these alone cannot be absolutely decisive in a 
 political discussion of the question. We have to ask further 
 whether the mutual dependence of nations, which tends to 
 result from unrestricted free trade, is advantageous or the 
 reverse. From a cosmopolitan point of view, the answer to
 
 xvin PRINCIPLES OF EXTERNAL POLICY 307 
 
 this question seems to me altogether favourable to free trade. 
 What has been contemptuously called the." bagman's millen- 
 nium" of Cobden the ideal of universal peace brought 
 about by universal free trade rests, I conceive, on a 
 thoroughly rational basis. We may distinguish two ways 
 in which free trade conduces to peace: (1) by interweaving 
 the interests of industrial classes in different societies in so 
 intimate and complex a way as to cause a strong aversion 
 to the widespread disorganisation of industry that must 
 result from war; and (2) by removing one special motive 
 for war, which must be expected to influence the nations of 
 Western Europe, even more strongly in the future than in 
 the past, if they cling to their protective systems the 
 desire of obtaining access to new markets for their products 
 and new supplies of the materials of manufacturing industry. 
 Supposing general freedom of trade and immigration, there 
 seems to be no reason why the process of national expansion 
 of which I shall presently speak should not go on peace- 
 fully, without exciting national rivalries so keen and bitter 
 as to cause war ; since the colonies and conquests of any 
 one nation 'would afford open markets and partially 1 open 
 fields of employment to all other nations. 
 
 On the other hand, assuming that war is to come, it 
 must be admitted to be a disadvantage to a State to be 
 dependent on other States for the necessaries of existence or 
 warfare ; and that unrestricted free trade may conceivably 
 place it in this state of dependence. Whether it would be 
 wise to interfere with the natural course of trade in order to 
 prevent this dependence must depend partly on the danger 
 of war, partly on the probability that even in case of war a 
 sufficient amount of trade might be kept open to supply 
 the most imperative needs of the people or the army. 
 
 Hitherto I have spoken only of import duties, which 
 are practically the most important restrictions on inter- 
 national trade that a modern State is likely to be urged to 
 
 1 I say "partially," because the utmost freedom of immigration would 
 still leave foreigners at a certain disadvantage in competing for employment 
 in colonies with immigrants from the mother country.
 
 3 o8 ELEMENTS OF POLITICS CHAP. 
 
 impose. Turning to export duties, it is easy to show that 
 it may be economically advantageous to a particular country 
 to impose them, if this country controls the whole, or the 
 chief, supply of a particular commodity for which there is 
 a keen foreign demand. But monopolies of this kind % are 
 rare and precarious : and an export duty has a dangerous 
 tendency to stimulate efforts to find substitutes for the 
 wares artificially raised in price by it ; and consequently to 
 end by inflicting commercial loss on the country imposing 
 it. If, however, the commodity thus monopolised is useful 
 for warlike purposes, the export duty may have a special 
 expediency as tending to increase the relative military 
 strength of the State. 
 
 3. The question of free immigration has occupied a 
 much smaller place in modern political discussion than the 
 question of free trade : still, freedom of immigration is a 
 recognised feature of the ideal which orthodox political 
 economists have commonly formed of international relations. 
 And it seems to be often implicitly assumed in the economic 
 arguments for free trade ; since, as I have pointed out, in 
 order that the advantages of complete freedom of exchange 
 among nations may be fully realised, it is necessary that 
 labour should move with perfect ease from country to 
 country to meet the changes that are continually likely to 
 occur in the industrial demand for it. On the other hand, 
 we have seen l that the system of international rights, 
 framed in the earlier period of modern European history on 
 the principle of mutual non-interference, allows each State 
 complete freedom in determining the positive relations into 
 which it will enter with States and individuals outside it ; 
 and though theoretically I cannot concede to a State possess- 
 ing large tracts of unoccupied land an absolute right of 
 excluding alien elements, I have not proposed any limitation 
 of this right in the case of civilised countries generally. 
 The truth is, that when we consider how far the exercise of 
 this right of exclusion is conducive to the real interest of 
 the State exercising it, or of humanity at large, we come 
 
 1 Chap. XV.
 
 xvin PRINCIPLES OF EXTERNAL POLICY 309 
 
 upon the most striking phase of the general conflict between 
 the cosmopolitan and the national ideals of political organisa- 
 tion, which has more than once attracted our notice. Ac- 
 cording to the national ideal, the right and duty of each 
 government is to promote the interests of a determinate 
 group of human beings, bound together by the tie of a 
 common nationality with due regard to the rules restrain- 
 ing it from attacking or encroaching on other States and 
 to consider the expediency of admitting foreigners and their 
 products solely from this point of view. According to the 
 cosmopolitan ideal, its business is to maintain order over the 
 particular territory that historical causes have appropriated 
 to it, but not in any way to determine who is to inhabit 
 this territory, or to restrict the enjoyment of its natural 
 advantages to any particular portion of the human race. 
 
 The latter is perhaps the ideal of the future ; but it 
 allows too little for the national and patriotic sentiments 
 which have in any case to be reckoned with as an actually 
 powerful political force, and which appear to be at present 
 indispensable to social wellbeing. We cannot yet hope to 
 substitute for these sentiments, in sufficient diffusion and 
 intensity, the wider sentiment connected with the conception 
 of our common humanity ; so that the casual aggregates 
 that might result from perfectly unrestrained immigration 
 would lack internal cohesion. Again, the governmental 
 function of promoting moral and intellectual culture might 
 be rendered hopelessly difficult by the continual inflowing 
 streams of alien immigrants, with diverse moral habits and 
 religious traditions. Similarly, the efficient working of the 
 political institutions of different States presupposes certain 
 characteristics in the human beings to whom they are 
 applied ; and a large intermixture of immigrants brought 
 up under different institutions might inevitably introduce 
 corruption and disorder into a previously well -ordered 
 State. 
 
 I think, therefore, that it would not be really in the 
 interest of humanity at large, to impose upon civilised 
 States generally, as an absolute international duty, the free
 
 310 ELEMENTS OF POLITICS CHAP. 
 
 admission of immigrants ; and that it would be a proper 
 policy for any such State to place restrictions on immigra- 
 tion, if ever it should threaten to take such dimensions as 
 to interfere materially with the internal cohesion of a nation, 
 or with the efforts of ite government to maintain an 
 adequately high quality of civilised life among the members 
 of the community generally. Apart from these mischievous 
 consequences, the free admission of aliens will generally be 
 advantageous to the country admitting them; partly for 
 reasons similar to those that render free trade generally 
 expedient, as the recipient State is thus enabled to share 
 the advantage of the special faculties and empirical arts in 
 which other countries excel ; partly as tending to the 
 diffusion of mutual knowledge and sympathy among nations. 
 Further, as I shall presently point out, over a large part of 
 the earth's surface the union of diverse races under a 
 common government seems to be an almost indispensable 
 condition of economic progress and the spread of civilisation ; 
 in spite of the political and social difficulties and draw- 
 backs that this combination entails. 
 
 II. 4. Among civilised States a continual interchange 
 of population goes on to a slight extent, which will be called 
 immigration or emigration according to the point of view 
 from which it is regarded. As between old fully-peopled 
 States like those of Western Europe and civilised States like 
 the American, with a large amount of unoccupied land, the 
 transfer of population tends to be more extensive and one - 
 sided ; the old States even when they are growing in 
 numbers and wealth send to the newer countries a con- 
 siderable excess of both over what they receive. When, 
 however, emigration takes place from civilised States into 
 regions uninhabited except by savage tribes whose political 
 organisation would hardly be held to justify the name of 
 " States " it is in modern times normally combined with 
 extension of the territory of the State from which it takes 
 place, and may be regarded as a process of Expansion of the 
 community as a whole. Whether, and in what manner, it 
 is desirable that this expansion should take place is the
 
 xvin PRINCIPLES OF EXTERNAL POLICY 311 
 
 last of the chief questions of external policy which I reserved 
 for the present chapter. 
 
 First, it is to be observed that the extension of the 
 territory of States through conquest is almost always accom- 
 panied by some immigration of the old members of the 
 State into the new territory. But where the territory was 
 already fully peopled by human beings the immigration is 
 not likely to be considerable, unless the war has been 
 unusually destructive, since there would be no room for the 
 immigrants without such a violent invasion of the private 
 rights of the old inhabitants as would be generally con- 
 demned and would excite strong resistance and general 
 odium. Hence the enlargement of a State through conquest 
 of this kind is hardly to be called expansion ; and the larger 
 whole that results from it is not, for some time at least, 
 organic^ being composed of parts not united by a common 
 national sentiment. Where the conquerors and conquered 
 are approximately equal in civilisation this result is likely 
 to continue for an indefinite period ; and, as the government 
 of the conquerors is not likely to confer benefits on the 
 conquered sufficient to compensate for the drawbacks of 
 alien rule, such conquest seems to be, under ordinary circum- 
 stances, rightly disapproved by the morality of modern 
 civilised nations. 
 
 The case is different when the conquered, though not 
 uncivilised, are markedly inferior in civilisation to the con- 
 querors. Here, if the war that led to the conquest can be 
 justified by obstinate violation of international duty on the 
 part of the conquered, the result would generally be regarded 
 with toleration by impartial persons ; and even, perhaps, 
 with approval, if the government of the conquerors was 
 shown by experience to be not designedly oppressive or 
 unjust ; since the benefits of completer internal peace and 
 order, improved industry, enlarged opportunities of learning 
 a better religion and a truer science, would be taken and, 
 on the whole, I think, rightly taken to compensate for the 
 probable sacrifice of the interests of the conquered to those 
 of the conquerors, whenever the two came into collision.
 
 312 ELEMENTS OF POLITICS CHAP. 
 
 Whether such conquest is in the interest of the conquer- 
 ing nation apart from the need of repressing and punishing 
 a turbulent neighbour, which has often been the preponderant 
 motive to wars that have terminated in conquests is a 
 question to which it is difficult to give a general answer. 
 Both the disadvantages and the advantages vary much in 
 different cases. The disadvantages are (1) the bloodshed 
 and cost of the fighting necessary to win and keep the 
 conquest ; (2) the increased difficulty of self-defence due to 
 the diminished cohesion of the enlarged State ; and (3) the 
 stronger temptation that dominion based on conquest offers 
 to the aggression of powerful neighbours. The chief material 
 advantages aimed at in conquest are (1) the increase of 
 strength for war, due mainly to the mere increase in size 
 and total resources, enabling the State to maintain larger 
 armaments and (2) increase of wealth for the conquering 
 community. The former advantage may easily be more 
 than outweighed by increased difficulty of defence if the 
 conquest is distant or otherwise inconveniently situated, 
 e.g. England is rather weakened than strengthened for 
 formidable conflicts by her possession of India. The pro- 
 spect, again, of increase of wealth varies very much in 
 different cases. In modern times such gain is rarely 
 even expected in the form of tribute to the public 
 treasury; since it is recognised that such taxation as is 
 possible without oppression is rarely likely to do more 
 than meet the expense involved in the acquisition, reten- 
 tion, and defence as well as the internal government of 
 the conquered country. Still substantial gains are likely to 
 accrue to the conquering community regarded as an aggre- 
 gate of individuals ; through the enlarged opportunities for 
 the private employment of capital, the salaries earned in 
 governmental service, and especially, in the case of a com- 
 mercial community, through the extended markets opened 
 to trade. The importance of this last consideration is 
 obviously much increased by the general adoption of the 
 protectionist policy which at present finds favour with the 
 majority of civilised States ; but it would not be without
 
 xvin PRINCIPLES OF EXTERNAL POLICY 313 
 
 importance even under a system of universal free trade ; 
 since the superior civilisation that the conquerors are sup- 
 posed to introduce will tend to spread to some extent their 
 special tastes in consumption, and a consequent preference 
 for the products of the dominant community. 
 
 Besides these material advantages, there are sentimental 
 satisfactions, derived from justifiable conquests, which must 
 be taken into account, though they are very difficult to 
 weigh against the material sacrifices and risks. Such are 
 the justifiable pride which the cultivated members of a 
 civilised community feel in the beneficent exercise of 
 dominion, arid in the performance by their nation of the 
 noble task of spreading the highest kind of civilisation ; 
 and a more intense though less elevated satisfaction 
 inseparable from patriotic sentiment in the spread of the 
 special type of civilisation distinctive of their nation, com- 
 municated through its language and literature, and through 
 the tendency to imitate its manners and customs which 
 its prolonged rule, especially if on the whole beneficent, 
 is likely to cause in a continually increasing degree. 
 
 This latter result might be called a process of spiritual 
 expansion, as distinct from the physical expansion which 
 takes place when the conquered region is so thinly popu- 
 lated as to afford room for a considerable immigration of the 
 conquerors. 
 
 5. In the conquest of countries fully inhabited by a 
 people on a par with their conquerors in civilisation, the 
 aim of physical expansion can for a modern State hardly 
 come in : and it cannot usually be more than a subordinate 
 aim, even where the conquered are decidedly inferior in 
 civilisation, if they have arrived at the state of settled 
 agricultural occupation of the land that they inhabit. Still, 
 if the conquered, though semi-civilised, are at a decidedly 
 lower stage of economic development, and if their climate is 
 not unsuited to the conquering race, the immigration of the 
 latter may reach substantial proportions ; so that the con- 
 quered country acquires in some degree the character of a 
 colony. Thus in Algeria, during some sixty years of French
 
 314 ELEMENTS OF POLITICS CHAP. 
 
 rule, room has been found for nearly half a million Euro- 
 peans, although at the time of the French conquest the land 
 was already held in agricultural occupation by an Arab 
 population ; and a judicious writer l allows himself to 
 imagine that in 1930 the European element in " French 
 Africa " may amount to two millions, with an Arab element 
 of six or seven millions largely " francises." If this forecast 
 should be fulfilled, probably no one would refuse to Algeria 
 the name of a colony. 
 
 More commonly, however, we denote by the term " colon- 
 isation " the occupation by a civilised community of regions 
 thinly inhabited by uncivilised tribes ; in which, accordingly, 
 even supposing the " aborigines " to be treated with equity 
 and consideration, there is room for a new population of 
 immigrants far exceeding the old in numbers. The rational 
 motives to colonisation, in this narrower sense, are partly 
 the same as those that prompt to the conquest of semi- 
 civilised countries. There is the desire of the more profitable 
 employment for capital, afforded in a special degree by the 
 undeveloped resources of regions new to civilised men, and 
 more safe or generally believed to be more safe in a 
 colony than in a foreign country : again, a colony tends, even 
 more decidedly than a conquest, to be a source of wealth to 
 a commercial country, from the extension that it affords to 
 trade ; since capital taken to a new country, if it is not 
 employed in producing commodities peculiar to this new 
 region, or for the production of which it has special advan- 
 tages, is naturally applied to the production of food and raw 
 materials, to be exchanged for the manufactured products of 
 the old country. 2 But a further most important motive to 
 colonisation is supplied by the desire whether of the 
 labourers themselves or of statesmen on their behalf to 
 find a more remunerative field of employment for the 
 
 1 Leroy Beaulieu, De la Colonisation chez les peuples modernes, 3rd 
 edition, p. 337. 
 
 2 It should be observed, however, that, to secure this advantage, the 
 fiscal policy of the colony must be kept under the control of the mother 
 country, in order that the former may not exclude the products of the latter 
 by import duties designed to protect its own industries.
 
 xvin PRINCIPLES OF EXTERNAL POLICY 315 
 
 surplus labour of the mother country. This motive, how- 
 ever, would hardly by itself lead any European nation to 
 attempt the founding of a new colony, so long as the 
 American States allow free immigration and have large 
 tracts of unoccupied land available for settlers ; in the 
 present condition, therefore, of the modern world, this motive 
 only prompts to colonisation as distinct from emigration 
 when combined with patriotic desires for national growth 
 and expansion, extension of national wealth and prestige, 
 and even power in international struggles, though it must 
 be very doubtful how far this latter end is likely to be 
 promoted by the founding of colonies. It is obvious that 
 such patriotic sentiments must be offended when emigrants 
 are absorbed in an alien State. 1 
 
 6. We have, therefore, in a theoretical discussion, to 
 distinguish clearly and treat separately the questions of (1) 
 emigration, and (2) colonisation : though practically the two 
 questions are often mixed up in the discussion of the large 
 schemes of state-directed colonisation which have been 
 recently urged on the attention of statesmen in more than 
 one European country. 
 
 1 It is difficult to estimate the force of the desire for national expansion, 
 including the desire of cultivated minds to spread the special type of 
 civilisation which they enjoy as distinguished from the more primitive 
 impulse to the amelioration of the emigrants' condition. The latter must be 
 taken to be the stronger : still it is doubtless a source of real dissatisfaction 
 to cultivated Germans that they continually see their emigrants absorbed by 
 the United States, and have to face the prospect of the posterity of millions of 
 Teutons inheriting with the English language the traditions of English instead 
 of German thought and sentiment. 
 
 The position of Great Britain in relation to the United States is very 
 peculiar ; since, on the one hand, whether we consider Great Britain's industrial 
 and commercial pre-eminence or her empire, one of the chief dangers that 
 threatens her is from the rivalry and aggression of the United States ; on the 
 other hand, if we derive any satisfaction from the expansion of the English 
 race, and of the English type of civilisation as communicated through its 
 language, literature, and law, the prosperous growth of the community in- 
 habiting the United States must be regarded as the most important means to 
 this end and perhaps more important than if the colony had remained in 
 political connexion with England. If any existing language should ever 
 become the one common language of civilised man it will probably be English : 
 and the chief cause of this result, if it should be brought about, will probably 
 be the growth and commercial pre-eminence of the United States.
 
 3i6 ELEMENTS OF POLITICS CHAP. 
 
 In considering how far any scheme of emigration should 
 be adopted, we must avoid the error into which untrained 
 minds are liable to fall, of assuming that any increase in 
 the number taken from a country by emigration would 
 involve a corresponding diminution in its future popula- 
 tion. On the contrary, general reasoning and experience 
 combine to show that emigration has a stimulating effect on 
 population in a country that has long been settled : and 
 that, accordingly, every increase in the number of emigrants 
 tends to cause a certain subsequent increase, which would not 
 otherwise have taken place, in the population of the country 
 from which they emigrate. It is, indeed, an error on the 
 opposite side to suppose that this increase will always be 
 sufficient to compensate for the diminution caused by 
 emigration, so that even the largest normal stream of 
 emigration may be regarded as having finally no effect on 
 the amount of the population of the country from which it 
 flows : but experience seems to show that this error diverges 
 less widely from truth than the former. 
 
 The truth, however, lies between these two opposite views. 
 On the one hand, in a country such as the United States now 
 is, with a supply of unoccupied land forming a continuous 
 territory with the older settlements, the population in the old 
 settlements is not likely to acquire the density that it has 
 in a country like Great Britain : on the other hand, if 
 the cost of the voyage to America or Australia were 
 freely defrayed by the English Government, there can 
 be no doubt that the aggregate of persons of English 
 birth inhabiting the two countries taken together would 
 increase at a materially greater rate. Under ordinary 
 circumstances, therefore, we must regard any systematic 
 provision for emigration as partly tending to produce 
 the increment of population for which it furnishes an 
 outlet. Accordingly, State aid to emigration cannot be 
 safely recommended as a relief for distress in " congested 
 districts " in which the population is too large for the 
 field of employment within the district except under the 
 condition either (1) that the causes of the congestion are
 
 xvin PRINCIPLES OF EXTERNAL POLICY 317 
 
 clearly temporary, or (2) that other measures be simultaneously 
 taken to prevent their future operation. And in considering 
 the wider question how far it is expedient for government 
 to undertake any regular and permanent provision for emi- 
 gration, we have first to determine how far the increase of 
 population that it will under ordinary circumstances inevitably 
 cause in the mother country and the colony taken together 
 is in itself desirable. 
 
 In the earlier chapters of this work no mention was made 
 of increase of population as a subordinate end at which a 
 statesman should aim, with a view to the promotion of the 
 general happiness. Such increase used to be so regarded in 
 pre-Malthusian days ; but it would now be generally agreed 
 that emigration apart a government that took measures 
 for the direct purpose of adding to the population of a 
 country as fully peopled as England or France, would be 
 assuming too great and dangerous a responsibility ; owing 
 to the danger that the increase of numbers would be 
 accompanied by a lowering of the average quality of life 
 in the increased population. 1 Indeed, since Malthus, an 
 important group of thinkers have urged that measures 
 should rather be taken tending to restrict the growth of the 
 population : and it seems not improbable that at some 
 future time the governments of civilised countries will 
 have to face this problem, unless measures of this kind are 
 spontaneously adopted by the governed. But in the present 
 condition of the world any such measures would seem to be 
 objectionable so far as they tend to check the expansion of 
 civilised humanity ; assuming 2 that the increase of the 
 amount of human life in the world, under its present 
 
 1 It may be added, a government that took measures for adding to the 
 population would find it hard to resist the demand that it should find work 
 and wages, without the deterrent conditions of our present poor-relief, for 
 the beings whose existence it thus indirectly caused. 
 
 2 A full examination of the pessimistic contention, by which this assump- 
 tion is denied, would be here out of place. It seems sufficient, for purposes 
 of political reasoning, to appeal to common experience, which shows that 
 only under very exceptional circumstances do human beings in any economic 
 condition feel a desire to extinguish either their own lives or the lives of 
 those whom they love.
 
 3i8 ELEMENTS OF POLITICS CHAP. 
 
 conditions of existence in civilised countries, is a good and 
 not an evil ; except so far as increase of numbers tends to 
 be accompanied by increase of disease, or even of physical 
 discomfort not involving disease. 1 If this assumption be 
 granted, we may clearly regard as a benefit to humanity 
 the stimulus to population which organised emigration and 
 colonisation would tend to give accompanied as it would 
 be with a tendency to improve the average condition of the 
 human beings in the colony and mother country taken 
 together. 
 
 I do not, however, think that any of the West European 
 States, loaded as they are with military expenditure, and the 
 payment of interest on debts incurred through war, can be 
 expected to undertake any considerable regular outlay for 
 the promotion of emigration, unless this outlay brings in 
 some substantial return to the State that undertakes it, other- 
 wise than by relieving the pressure on population. And where 
 the emigrants become members of another State, no adequate 
 return to the State sending them out can generally be 
 expected, unless the government of the region of immigration 
 will guarantee the repayment of the outlay. Some advantage, 
 indeed, is likely to result in the way of extended trade, since 
 the emigrants will be more likely than foreigners to have 
 tastes which the producers of their original country will be 
 specially qualified to supply ; but this advantage will be too 
 uncertain and precarious to justify expenditure for which it 
 is the main return. Under these circumstances I conceive 
 that the intervention of the government in the region of 
 emigration should ordinarily be limited to the collection and 
 diffusion of information, the prevention of deception by emi- 
 gration agents, the regulation of the service of emigrant ships, 
 and other comparatively inexpensive measures ; designed to 
 secure as far as possible that emigrants shall go to the most 
 suitable places, with full knowledge of the inconveniences 
 and risks involved in the process of transfer, and that this 
 
 1 I do not think that the mere decrease of physical strength such as tends 
 to result from the increase of the manufacturing or trading element in a 
 population necessarily involves a decrease of happiness.
 
 xvin PRINCIPLES OF EXTERNAL POLICY 319 
 
 process shall not take place under conditions unnecessarily 
 dangerous to their physical wellbeing. 
 
 7. The case is materially different when the question 
 is of promoting emigration to territory whether newly 
 acquired or not under the control of the government. 
 In this case we must estimate more highly the advantage 
 of extension of trade, and also of enlarged opportunities 
 for the employment of private capital ; there is also, 
 as we saw, the sentimental satisfaction of the desire 
 of national expansion ; there is in some cases a gain of 
 increased strength to the State, though this, of course, 
 depends on the situation of the territory colonised : and 
 finally, there is some prospect of recovering even for 
 the public treasury a portion of the expense of subventing 
 emigration, from the value of the land and its contents in 
 the newly settled region. This last element is of varying 
 importance ; but it might conceivably be so considerable 
 as both to defray the extra expense thrown upon Govern- 
 ment by the process of colonisation including the cost 
 of facilitating access to the land by roads, harbours, etc., 
 as well as the cost of surveying it for sale or lease, and 
 also to contribute a part of the cost of transporting emi- 
 grants. Experience, however, seems to show that, generally 
 speaking, taking into account the risk of conflict with 
 aborigines and of collisions with other civilised states, the 
 cost of founding a colony will outweigh any returns obtain- 
 able to the public treasury of the mother country ; l and that 
 the extra cost cannot be thrown on the colonists, since, so 
 long as the colony is weak, it is too poor to bear it, while, 
 when it has grown richer, it will also have grown stronger, 
 and will refuse to pay. Still, for the reason before given, 
 even where colonisation is a bad investment from the point 
 of view of public finance, it may still be remunerative in one 
 way or another to the community as a whole. 
 
 1 Merivale (Colonisation and Colonies, sec. ix.) says that, "if history be 
 consulted, it will be found that in modern times no experiment in colonisation 
 has ever succeeded in the way and at the rate which its projectors have 
 expected."
 
 320 ELEMENTS OF POLITICS CHAP. 
 
 In the present state of the world, the founding of a new 
 colony, adapted to the reception of European immigrants 
 on a large scale, is not a very probable event. 1 But the 
 business of promoting the settlement of unoccupied land 
 remains of some practical importance, though such land 
 as is still available and suitable lies chiefly within the 
 territories already under civilised government. I propose, 
 therefore, briefly to consider the chief special functions 
 that will devolve on Government in connexion with this 
 business, viz. (1) the disposal of the land available for 
 settlement, (2) the encouragement (if required) of immigra- 
 tion, and (3) the management of the relations between the 
 settlers and the aborigines. The two former functions, as 
 we have already noticed, are closely connected, since it is 
 the land available for settlement that will normally supply 
 the chief resources for encouraging immigration. There are 
 two essentially distinct modes of employing it in this way, 
 each of which admits of several minor modifications ; (a) it 
 may be granted to settlers, under conditions formed to secure 
 its cultivation, either without payment or for a payment 
 below its market value ; or (&) it may be sold or let at the 
 market rate, and the proceeds used to defray the whole or a 
 part of the cost of conveying suitable emigrants. Whether 
 either of these methods should be adopted, and if so which 
 method, will depend on several considerations ; such as the 
 distance of the region of immigration from the native home 
 of the settlers whom it is designed to attract, the quality 
 and extent of its natural resources, the amount of labour 
 and capital required to turn them to most profitable account, 
 and last, but not least, the probability of obtaining an ade- 
 quate supply of immigrants without special encouragement. 
 
 i. Where the emigration into unoccupied districts is 
 mainly continental as in the United States so that the 
 new settlements are continuously connected by older ones 
 with fully peopled territory, the method of directly con- 
 
 1 Merivale, in 1870, went so far as to say (Fortnightly Review for February 
 1870, p. 155) "emigration exists and multiplies: colonisation is dead and 
 buried."
 
 XVIII PRINCIPLES OF EXTERNAL POLICY 321 
 
 tributing a part of the cost of transporting emigrants is 
 obviously less needed, and would be difficult to apply in a 
 regular way. In this case, if the returns from the land 
 when sold or leased at the rate financially most profitable 
 should be more than sufficient to pay the cost of accurate 
 surveying and roadmaking, and any special expenses entailed 
 by the relations with the aborigines, it would seem better 
 to employ them in aiding the construction of railways or 
 other elaborate instruments of communication, or else as 
 a substitute for taxation. And this may also be best even 
 where the region of immigration is separated by a long sea 
 voyage from the region of emigration, if a sufficient supply 
 of emigrants can be obtained without the special attraction 
 of an artificially reduced cost of transport or settlement. 
 
 ii. If such special attraction is thought to be required 
 to quicken and amplify the stream of immigration, we have 
 to consider whether this will be best given by cheapening 
 transport or cheapening land. The former method may 
 be the more effectual, if the region to be colonised is one 
 which offers valuable special facilities for producing wares 
 for the world's markets, so as to promise a remunerative 
 return to capital employed on a large scale if only it can 
 obtain an adequate supply of labour. For in this case it 
 may be possible to find purchasers or tenants for the land 
 at a comparatively high price, provided that a considerable 
 portion of the funds thus obtained be spent in transporting 
 suitable labourers : and the high price, while it affords a 
 fund for defraying or reducing the cost of immigration, will 
 at the same time prevent the rapid acquisition of land by the 
 labourers, so as to keep their services available for capitalist 
 employers. 1 
 
 iii. On the other hand, where the land offers no special 
 facilities for production for the outside market, the prosperous 
 development of its resources seems to depend on attracting 
 
 1 Merivale considers that the successful application of this method is 
 exemplified by the history of the Australian colonies during the generation 
 succeeding the "Australian Land Sales Act "(1842), that introduced the 
 system of sale by auction at an upset price of 1 per acre. 
 
 Y
 
 322 ELEMENTS OF POLITICS CHAP. 
 
 settlers who will cultivate the land largely with a view to 
 subsistence for themselves and their families ; in this case 
 the most suitable encouragement to immigration seems to be 
 to give the land to such settlers at a low or merely nominal 
 price, under proper conditions of residence and cultivation. 
 If this does not suffice to attract colonists who can pay their 
 own expenses, the further step may be taken of giving cheap 
 or gratuitous transport to carefully selected immigrants, and 
 charging the land granted to them with the debt incurred. 
 It would be too sanguine to expect that the whole of the cost 
 incurred can be thus recovered ; since a certain percentage of 
 failures among the settlers can hardly be prevented by the 
 most careful selection : still with good management there 
 seems no reason why the amount recovered should not be so 
 considerable as to render it worth while to incur the inevit- 
 able loss, in the interests of national expansion. 
 
 8. It remains to speak of the management of the 
 relations between civilised settlers and the uncivilised tribes 
 inhabiting the district into which immigration takes place 
 commonly called the " aborigines." It is not without hesi- 
 tation that I venture to touch this question, as I can only 
 treat it in a very brief and general way ; while any student 
 of the history of European colonisation must be profoundly 
 impressed with its difficulty. What a well-informed writer, 1 
 by no means unduly sentimental, calls the " wretched details 
 of the ferocity and treachery which have marked the conduct 
 of civilised men in their relations with savages," forms one of 
 the most painful chapters in modern history ; all the more 
 painful from the frequent evidence it gives of benevolent 
 intentions, and even beneficent efforts, on the part of the 
 rulers of the superior race. At present in England there 
 is a general agreement that the wellbeing of the uncivilised 
 first-comers, found in regions colonised by civilised men, 
 should be earnestly and systematically kept in view by 
 the governors of these latter ; and that the " aborigines " 
 should be adequately compensated for any loss that they 
 may suffer from the absorption of their territory and ulti- 
 1 Merivale, Colonisation. Lee. xviii.
 
 xviii PRINCIPLES OF EXTERNAL POLICY 323 
 
 mately of themselves by the expanding civilised societies. 
 It is therefore permissible to hope that in the future some 
 closer approach may be made to the realisation of this ideal 
 than has been made in the past. 
 
 The question assumes different forms in what may be 
 distinguished as (1) colonies of settlement where the manual 
 labour can be and will be supplied by the civilised race ; 
 and (2) colonies only called so in a looser sense in which 
 it can only supply capital and superior kinds of labour. 1 
 In the first case the main difficulties of the problem are 
 likely to be transient ; the incoming tide of civilised immi- 
 gration will gradually modify or submerge the barbarism of 
 the aborigines ; so that ultimately the question, how to 
 deal with such of them as may survive without becoming 
 really fit for civilised work, will sink into a part of the 
 general question of dealing with the incapable and recal- 
 citrant elements found in all civilised communities. But 
 in its early stages the collision of races is likely to be more 
 intense in colonies of this class ; since the process of settle- 
 ment inevitably involves more disturbance of the economic 
 conditions of the life of the aborigines. 
 
 On the other hand, in colonies where the superior race 
 does not supply the manual labour, the difficulties of govern- 
 ing a community composed of elements very diverse in 
 intellectual and moral characteristics must be expected to 
 last indefinitely longer ; but there is no stage at which the 
 conflict of interests need be quite so acute as in the former 
 case. 
 
 Of the two cases just distinguished the former has been 
 most important in our past history ; but its importance is 
 rapidly diminishing, and in most of the territories open to 
 the future expansion of civilised European States, manual 
 labour is likely to be mainly performed by non-European 
 
 1 I do not mean that a sharp line can be drawn between the two kinds of 
 colonies. For instance, in our own empire, the South African colonies form, 
 from this point of view, a series of links intermediate between Australia and 
 New Zealand which are clearly colonies of settlement, and the West Indian 
 islands which are clearly not.
 
 324 ELEMENTS OF POLITICS CHAP. 
 
 races. I do not propose here to discuss in detail the method 
 of dealing with either of the cases above distinguished ; but 
 only to indicate briefly the nature of the problems that arise 
 and the principles prima facie applicable to them, in accord- 
 ance with the general view of politics taken in the present 
 treatise. And, in doing this, I shall not attempt to dis- 
 tinguish between the international duty and the interest of 
 the civilised nation aiming at expansion. I believe that 
 here, as elsewhere, duty and interest are mostly coincident, 
 but I could not undertake to prove that this is so in all 
 cases. In what follows, therefore, I must be understood to 
 have in view, as the ultimate end, the aggregate happiness 
 of all the human beings concerned, civilised and uncivilised 
 native or imported. It does not seem possible even if 
 it were desirable to check the expansion of civilised 
 Europe: consequently, the problem of regulating and 
 governing composite social aggregates, with a civilised 
 minority superimposed on a semi-civilised majority, must 
 be regarded as one of the most important proposed for 
 European statesmanship in the proximate future. 1 
 
 1. The first point demanding attention is the general 
 claim of a civilised State to supreme control whether as 
 " Sovereign " or " Protector " over territory inhabited by 
 uncivilised tribes. This claim has to be considered in two 
 aspects (1) as excluding the claims of other civilised States 
 to expand into the same territory ; and (2) as asserting 
 rights of interference with the previous inhabitants of the 
 territory. The conditions of its validity from the former 
 point of view belong to an earlier part of the discussion : 2 
 here we are only concerned with the claim so far as it 
 affects the aborigines. It would be going too far to say 
 that no exercise of power over these latter is justifiable, 
 unless the general consent of the persons subjected to it 
 may be presumed from agreements formally made by their 
 chiefs or on some other adequate ground. But we may say 
 
 1 On the structure of government in colonies of this kind I shall have 
 something to say in a subsequent chapter (XXVI.). 
 
 2 See Chap. XV. 4.
 
 xvni PRINCIPLES OF EXTERNAL POLICY 325 
 
 that no serious interference of the civilised government 
 with the aborigines should take place without such evidence 
 of consent, except under circumstances which afford a special 
 justification for it ; as (e.g.} when the civilised State has 
 been victorious in a war provoked by the aggression of the 
 inferior race, or when the interference is necessary for the 
 security of its own subjects in the exercise of rights that 
 they may fairly claim, or to protect the natives from the 
 evils of intercourse with the most lawless and degraded 
 elements of civilised society. Further, the claim of sover- 
 eignty should not be understood to carry with it any 
 obligation to interfere with the laws and customs of the 
 aborigines, even when opposed to civilised morality. Such 
 interference should be regulated by an unprejudiced regard 
 for the social wellbeing of the tribes subjected to it ; which 
 might be seriously impaired by the sudden abolition even 
 of pernicious customs. 
 
 2. In regulating the relations between aborigines and 
 settlers, the care of Government will be specially needed to 
 prevent the interests of the former from being damaged 
 through the occupation of land by the latter. We may lay 
 down that the aborigines should never be deprived of any 
 definite rights of property without full compensation ; and 
 that, so far as possible, such rights should be only ceded 
 voluntarily. I cannot, indeed, hold that compulsory transfer 
 is in principle inadmissible ; since I cannot regard savages 
 as having an absolute right to keep their hunting-grounds 
 from agricultural use, any more than an agricultural occu- 
 pant in a civilised State has a right to prevent a railway 
 from being made through his grounds. Still, compulsory 
 deprivation should be avoided as far as possible, even where 
 it may seem abstractly justifiable, on account of the violent 
 resentment that i; is likely to cause. Further, the civilised 
 government should supervise carefully the sale of lands by 
 natives to private settlers ; it may even be expedient, in 
 the earlier stages of colonisation, that Government alone 
 should have the right of purchasing such lands ; in order 
 that undue advantage may not be taken of the ignorance of
 
 326 ELEMENTS OF POLITICS CHAP. 
 
 the aborigines, and that difficulties arising from complicated 
 and vaguely defined rights of joint-ownership may be pro- 
 perly dealt with. Further, even where the aborigines have 
 not been accustomed to claim or recognise any definite rights 
 of property in the lands occupied by the settlers, I conceive 
 that adequate compensation for the loss of the utilities in 
 the way of hunting, fishing, etc., which they have been 
 accustomed to derive from such lands, is none the less due 
 to them. 1 
 
 3. Further restrictions on the freedom of intercourse 
 and exchange between aborigines and settlers may be 
 temporarily necessary ; the extent of which experience only 
 can determine, as the need for them will vary with the 
 degree of intellectual and social development reached by 
 the inferior race. Familiar instances of such restriction are 
 the prohibition of the sale of intoxicating liquors, and the 
 prohibition of the sale of firearms : but in some cases a 
 more complete separation of races, and a more thorough 
 tutelage of the inferior race, would seem to be temporarily 
 desirable. It is, indeed, hardly likely that this kind of 
 artificial isolation can ever be more than partially success- 
 ful I think, therefore, that such measures should generally 
 be regarded as essentially transitional, and only adopted 
 if at all in order better to prepare the aborigines for com- 
 plete social amalgamation with the colonising race. 2 
 
 4. In any case the protection of the lives and property 
 
 1 The necessity of making such compensation may be partly avoided by 
 the reservation of certain portions of territory as hunting-grounds for the 
 natives ; but as the game in such reserves tends to be diminished by the 
 progress of settlement around, and as the demand of the settlers for the 
 reserved land will become increasingly intense, this can only be regarded as 
 a temporary expedient. Nor is it desirable that it should be permanent in 
 the interests of the natives ; but rather that they should be gradually edu- 
 cated to the habits of steady labour which civilised industry requires. 
 
 2 Of course if it should become clear that the social amalgamation of two 
 races would be debasing to the superior race, or otherwise demonstrably 
 opposed to the interests of humanity at large, every effort ought to be made 
 to carry into effect some drastic and permanent measures of separation. But 
 I do not think that any proof has yet been brought adequate to support such 
 a conclusion.
 
 xvni PRINCIPLES OF EXTERNAL POLICY 327 
 
 of the settlers will require effective prosecution and exem- 
 plary punishment of crimes against them : at the same time, 
 it will be the imperative duty of Government to keep such 
 punishment within the limits of strict justice. The difficult 
 task of fulfilling this double obligation is likely to be better 
 performed if those charged with it are not hampered by 
 pedantic adhesion to the forms of civilised judicial pro- 
 cedure : what is important is that substantial justice should 
 be done in such a manner as to impress the intellect of the 
 aborigines with the relation between offence and punishment. 
 
 5. I have spoken of industrial education as an indis- 
 pensable part of the compensation due from the civilised 
 intruders. But their educational task should not be limited 
 to this : it should include all kinds of instruction required 
 to fit the inferior race to share the life of civilised mankind. 
 In particular, though the religion of the settlers should not 
 be compulsorily imposed on the natives, every encourage- 
 ment should be given to the efforts of missionaries to teach 
 it. Experience seems to show that the potency of such 
 teaching as an instrument of civilisation varies very much 
 in different cases, but few will doubt the desirability of 
 allowing full scope to its application. 
 
 6. One of the most indisputable services that as we 
 may hope the expansion of civilised States is destined to 
 confer on uncivilised humanity is the abolition of the evils 
 of enslavement, and of the wars and raids that have enslave- 
 ment for their object ; and, ultimately, of the condition of 
 slavery. But it may often be expedient that this latter 
 result should be only gradually attained : while, on the other 
 hand, even where the status of slavery is formally excluded 
 by law, special restrictions on freedom of contract between 
 natives and settlers are likely to be required in the case of 
 contracts of service ; since, if such contracts are left un- 
 restricted, there is some risk that the inferior race may be 
 brought too completely into the power of private employers. 
 This point is of course peculiarly important in the case of 
 colonies in which the superior race cannot or will not 
 undertake the main part of the manual work required : in
 
 328 ELEMENTS OF POLITICS CHAP, xvin 
 
 this case the demand of the capitalist employer for a steady 
 supply of reliable labour led modern civilisation in its 
 earlier stage back to the institution of slavery in an ex- 
 treme form : and prompts even now to longing aspirations 
 after some system of compulsory labour, which shall have 
 the economic advantages of slavery without its evils. But 
 I know no ground for thinking that such a system can be 
 devised : and should accordingly deprecate any attempt to 
 approximate to it. I do not therefore infer as some have 
 inferred that contracts of long duration ought to be pro- 
 hibited altogether ; but only that they ought to be carefully 
 supervised and closely watched. The need for this vigilance 
 arises equally it may be even greater when the labourers 
 in question are not natives, but aliens belonging to a lower 
 grade of civilisation ; at the same time there are strong 
 economic reasons for introducing labour from abroad in 
 colonies of this class, where the natives are either not 
 sufficiently numerous or wanting in industrial capacity.
 
 PART II 
 
 THE STRUCTURE OF GOVERNMENT AND 
 ITS RELATIONS TO THE GOVERNED 
 
 329
 
 CHAPTEE XIX 
 
 METHODS AND INSTRUMENTS OF GOVERNMENT 
 
 1. IN the preceding chapters we have been occupied in 
 surveying the work of government from the point of view of 
 the governed : that is, we have concentrated attention on 
 the effects that Government ought to aim at producing in 
 the condition and mutual relations of the private members 
 of the community governed, and in their relations to indi- 
 viduals and communities outside. In the chapters that 
 follow we shall be engaged in considering how Government 
 should be constituted for the proper performance of the 
 functions which our discussion up to this point has marked 
 out for it ; how the necessary organs of government should 
 be appointed ; what should be their mutual relations ; and 
 how far their powers should be constitutionally limited by 
 the rights of the governed. The present chapter forms the 
 transition or connecting link between the two discussions. 
 I propose here to make a brief survey of the whole work 
 marked out for government, with the special object of deter- 
 mining in a general way the kind of methods and instruments 
 that will be required for its satisfactory accomplishment. 
 
 In this chapter I shall assume, for simplicity, that we 
 
 are concerned with what may be called " unitary " l States : 
 
 that is, with States in which the ordinary exercise of the 
 
 highest powers of Government belongs to a central organ or 
 
 organs, exercising control over all the members of the State ; 
 
 1 I use this term to contrast them with Federal and other composite States, 
 the peculiarities of which will form the subject of a special chapter (XXVI.). 
 
 331
 
 332 ELEMENTS OF POLITICS CHAP. 
 
 while only matters of secondary importance are handed over 
 to the independent management of local governing bodies. 
 I shall also assume the unity of government in a different 
 sense ; i.e. I shall assume that, however the functions of 
 government may be divided among different persons and 
 bodies, there is no ultimate conflict among these organs ; so 
 that, though there may be differences of view among them 
 leading to debate and mutual criticism, still their final 
 decisions, demanding the obedience of the rest of the com- 
 munity, are as harmonious and consistent as if they emanated 
 from one rational will In subsequent chapters, examining 
 more closely the constitution and relations of different organs 
 of government, we shall have to take note of the possibilities 
 of conflict among them, and consider expedients for avoiding 
 or terminating it : but for the present I shall simply assume 
 it to be avoided, and shall speak of " Government " as 
 possessing unity of action, however its powers may be 
 distributed. 
 
 For clearness of view let us first limit our attention to 
 what I have called the " individualistic minimum " of govern- 
 mental business what other writers have distinguished as 
 the " necessary " from the " optional " functions of govern- 
 ment. In this view, the main internal work of government 
 will consist in maintaining general security from coercion 
 and intimidation, from intentional and culpably careless 
 injury to person, reputation, or property, and from loss 
 caused by failure to perform contracts according to the 
 definition of these rights before given ; and in securing due 
 provision for children, the burden of their support and 
 education being thrown on their parents. It will further 
 have to protect the interests of the community generally, 
 and of individual members of it so far as may be necessary, 
 against the attacks or encroachments of foreigners at the 
 same time compelling its own subjects to abstain from 
 violating the rights of the latter. Finally, it will be its 
 duty to make such provision as may be required for its 
 own maintenance, and its own defence against internal as 
 well as external foes. We have then to consider what
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 333 
 
 governmental machinery will be necessary or expedient for 
 the performance of these functions. 
 
 Let us take the internal work first. Here the point of 
 primary importance is to give adequate inducements to all 
 persons to perform their fundamental duties and refrain 
 from infringing the fundamental rights of others. This 
 end, as we before saw, may be partly attained by enforcing, 
 at the request of the person whose right has been infringed, 
 redress or compensation from the person who has infringed 
 it ; but in the case of grave transgressions of duty it will 
 also be necessary to inflict on the violators some further 
 punishment beyond the penalty involved in the enforce- 
 ment of compensation ; moreover, there are certain kinds of 
 mischievous conduct which, as they do not give occasion 
 for compensation, can only be repressed by punishment. 
 Accordingly, whenever a sufficiently serious transgression 
 of duty appears, or is alleged, to have occurred, it will be 
 the business of Government, firstly, to decide, after an im- 
 partial examination of the facts, whether or not the trans- 
 gression has actually taken place ; and secondly, whenever 
 such transgression is proved, to take such steps as may be 
 necessary for compelling adequate redress or compensation, 
 and inflicting adequate punishment. It is evident that 
 these two businesses require to a great extent 1 different 
 intellectual faculties and habits for their efficient conduct : 
 the former needs a thorough and exact knowledge of the 
 rules of civic duty that Government has to enforce, and 
 impartiality and expertness in applying them to particular 
 cases : the latter demands skill in organising and combin- 
 ing the labour of a number of subordinates policemen, 
 prison officials, etc. with appropriate materials and instru- 
 ments, for the attainment of particular definitely prescribed 
 results. We have therefore prima facie reason to allot 
 these functions to separately constituted organs, 2 which 
 
 1 I am only here concerned with broad distinctions. I shall afterwards 
 show that the functions of the judiciary and the executive are necessarily in 
 some degree similar, and that the division of work between the two organs 
 is in some respects doubtful and varying. 
 
 2 Further reasons for this separation will be given in the sequel.
 
 334 ELEMENTS OF POLITICS CHAP. 
 
 in accordance with usage I will call respectively the 
 Judiciary or Judicial organ, and the Executive. It is the 
 latter that will actually have to bring such force as may be 
 required to overbear any resistance that may be offered by 
 recalcitrant transgressors : it must therefore provide, or- 
 ganise, and train this force, so as to apply it when needed 
 in the most effective and economical way, and with the 
 minimum of social disturbance. Further, the organised 
 physical force of the community will also be required 
 and ordinarily to a much greater extent for the purpose 
 of defending the interests of the State against foreign 
 aggression : and it is obviously desirable, to prevent danger- 
 ous conflicts of authority, that its ultimate control should 
 be in one hand. Thus there is a strong prima facie reason 
 for making identical the organ that deals with the foreign 
 relations of the State with what we have called the 
 Executive, so far as the supreme direction of both functions 
 is concerned. I shall, accordingly, assume provisionally 
 that this is the case, and that it is the business of the 
 Executive to receive foreign ambassadors, and to watch 
 over the interests of the State and its members abroad, 
 through the agency of ambassadors and consuls, 1 and 
 through correspondence with foreign governments; and 
 also to organise and equip armies and fleets for foreign 
 warfare, and direct their action when war has broken out. 
 
 Turning again to internal affairs, we may note that, 
 even if the functions of government are confined within the 
 
 1 Consuls in modern States are officials resident in foreign countries, 
 appointed to watch over the interests of the subjects of the State appointing 
 them. They are allowed by the State in which they reside to exercise quasi- 
 governmental functions of a subordinate kind, for the benefits of subjects of 
 the State which they represent : such as administration of the property of 
 such persons dying in the country where they reside, arbitration in disputes 
 voluntarily brought before them by such persons, authentication of births 
 and deaths, etc. They have also to inform the government appointing 
 them of any injustice done to its subjects. This latter function is obviously 
 of greater importance in the case of imperfectly civilised countries : and in 
 such countries the powers of consuls are sometimes extended to include 
 criminal jurisdiction over the subjects of the country which they represent, 
 and civil jurisdiction in cases to which such subjects are parties.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 335 
 
 narrowest limits, it must be the further business of the 
 Executive to arrest persons suspected, on adequate grounds, 
 of crime and keep them in confinement up to the time of 
 trial if the crime be grave. Moreover, it is obviously 
 desirable that Government should stop offences, if possible, 
 before they are completed, prevent them if the intention to 
 commit them is manifest, and remove continuing sources of 
 injury and clearly illegal annoyance. Policemen, accord- 
 ingly, will be required for these purposes, no less than for 
 bringing criminals to punishment. 
 
 Again, we have before seen (Chap. XL) that, for the ade- 
 quate performance of all the various functions above de- 
 scribed, kinds and amounts of labour are required which 
 cannot be expected to be obtained gratuitously, and cannot 
 well be imposed, as unremunerated duties, upon any class 
 of citizens in a modern State : and that, accordingly, in 
 order to provide the required remuneration and the various 
 instruments and materials needed for governmental pur- 
 poses, Government must have the power of levying taxes 
 on the income or property of the governed. We must 
 therefore add to the Government a financial department, to 
 superintend the collection of these taxes, and their distribu- 
 tion for the different purposes of governmental expenditure. 
 Tax-collectors, paymasters, accountants, comptrollers, and 
 auditors, will be the subordinate officials in this depart- 
 ment ; and their operations will be directed by superior 
 officials, whose business will form another department of 
 what I have called Executive functions. Further, it seems 
 clear that the proportion of the national income required 
 for governmental expenditure cannot be fixed once for all, 
 owing to the great variations that occur chiefly through 
 foreign wars, and dangers of wars in the needs of Govern- 
 ment. " The public," as Hobbes says, " cannot be dieted " ; 
 so that private members of the community must submit to 
 the degree of insecurity involved in an indefinite right of 
 Government to take their property. It seems therefore 
 important, in order to minimise this insecurity and render 
 the exercise of this power of taxation as little formidable
 
 336 ELEMENTS OF POLITICS CHAP. 
 
 as possible, that the taxes to be levied should not be deter- 
 mined by the officials who will have to spend the proceeds, 
 or other officials under their influence : it is important 
 that the " budget " of the State should receive the assent 
 of a separate and independent body, specially qualified to 
 watch, in the interest of the taxpayers, the collection and 
 expenditure of the taxes, and to prevent as far as possible 
 any oppressiveness in the former or excess in the latter. 
 It is, accordingly, an accepted principle in the construction 
 of a modern government, that the ultimate control of 
 governmental finance should be in the hands of such a 
 body. 1 
 
 2. So far I have said nothing of a Legislative organ, 
 having the function of laying down the general rules of 
 civic duty which the Judiciary has to apply to particular 
 cases. But if the State requires laws, it seems an obvious 
 inference that it needs a special organ for the supremely 
 important work of laying down the laws required ; and, as 
 in fact such an organ exists in all modern States, I have 
 not hesitated to assume its existence in previous chapters. 
 Still, the obvious inference from law to a legislature is not 
 quite so indisputable as it seems, if we suppose the action 
 of government to be strictly confined to the " individualistic 
 minimum." As has been before observed, a great part of 
 the rules enforced by Government in our own society have 
 not had their origin in express legislation ; they have been 
 gradually brought to the degree of precision and elaborate- 
 ness which they have now attained, by a series of judicial 
 decisions which ostensibly declared and applied rules or 
 principles of right handed down from time immemorial. 
 And it might be held that this judicial quasi-legislation 
 is, even in a highly civilised society, the best machinery for 
 introducing such improvements as may be required in the 
 definition of these traditional rules. 
 
 The issue thus raised will be most conveniently discussed 
 
 1 That this "money-granting" body should be elected by the citizens at 
 large is also a principle generally accepted in modern States : but it seems 
 better to reserve it for subsequent discussion. See Chap. XX. 1.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 337 
 
 by distinguishing two questions; (1) whether it is expedient 
 that legal duties should be capable of being known as 
 exactly as possible by the persons who have to fulfil them ; 
 and (2) whether legislative enactments or judicial decisions l 
 afford the best means of attaining this end. In examining 
 the first question since there are some who are hardly 
 able to conceive it answered otherwise than affirmatively, 
 it will be well to put the case as plausibly as we can on 
 the opposite side. We may do this by laying stress on the 
 analogy between law and morality. What is called the 
 " moral code " is very unprecisely apprehended by ordinary 
 persons : and it is not uncommonly held that attempts to 
 formulate it precisely are mistaken, and liable to do harm 
 rather than good by encouraging persons to conform to the 
 letter of the rules laid down, while really disloyal to the 
 underlying principles. Every one, it is often said, knows 
 broadly what he ought to do ; in difficult cases he had 
 better trust to instinct ; if he goes wrong and deserves 
 condemnation, his ill desert will be easily apprehended 
 at any rate after the event by an experienced and 
 impartial spectator. It seems quite possible to treat the 
 legal code similarly ; indeed, it might be fairly urged that 
 the legally obligatory part of our moral duty is generally 
 the easiest to know. Every plain man is perfectly aware 
 that he ought not to slay, or wantonly beat, or insult and 
 defame his fellow-citizens, that he ought not to steal, cheat, 
 break his promises, neglect his children, etc. : if he commits 
 any of these offences he will almost always be conscious that 
 he has done wrong ; and if he should lack this conscious- 
 ness, his judge at any rate will have no difficulty in coming 
 to a decision which will be generally approved. Grant that 
 there are cases " on the line," which even an expert would 
 have some difficulty in deciding, and in which, therefore, a 
 plain man cannot be expected to know his strictly legal 
 
 1 It should be observed that it is not necessary that the intellectual part 
 of the process of judicial development of law should be even mainly per- 
 formed by the judges : it may be mainly due to the action of teachers and 
 writers having no official position. 
 
 Z
 
 338 ELEMENTS OF POLITICS CHAP. 
 
 duty ; still, it may be urged, this ignorance has its advan- 
 tages, as a plain man should keep aloof from this ambiguous 
 margin ; if you tell him the precise limits of his legal obli- 
 gations, you hold out to him a dangerous temptation to go 
 as close as possible to the limit, when interest or passion 
 urge him in the direction opposed to duty. 
 
 These arguments seem to me not devoid of force. In- 
 deed, it is because they contain an important element of 
 truth that the legal maxim, " ignorance of the law excuseth 
 none," is not in practice so oppressive as it at first sight 
 appears. The ordinary citizen of a modern State certainly 
 does not know the law of his State ; but, if he acts on his 
 common-sense view of social duty, the cases in which he is 
 in danger of coming into collision with this law are com- 
 paratively few. And it is a matter of common experience 
 that the more precise knowledge of particular rules of law, 
 which a minority of persons attain by special study, is 
 sometimes used for the purpose of evading social duties and 
 taking an unfair advantage of the ignorance of others. 
 
 But such force as the arguments above given may be 
 allowed to possess, seems to be decidedly outweighed by the 
 consideration of the insecurity, inconsistency, and inequality 
 that tend to result from imperfect definition of legal 
 duties. 
 
 In considering the first evil insecurity we see that 
 the analogy just suggested, between doubtful or marginal 
 cases in morality and similar cases in law, is not a close one. 
 When confronted with a problem of moral casuistry, where 
 there is a prima facie conflict of duties, a man who means 
 well may usually hope, even if he is severely condemned 
 by some moral persons, to be acquitted or even praised by 
 others. But in the case of legal penalties there can be no 
 such mixture and balance ; they must be either inflicted or 
 not inflicted; and though punishment proper might some- 
 times be remitted or reduced where the absence of criminal 
 intent was clear, such remission could not be counted on ; 
 since very mischievous acts, needing severe repression, may 
 be done by thoroughly well-intentioned persons : and in
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 339 
 
 any case damages due to private individuals wronged could 
 not be remitted. And to the suggestion that the danger 
 of having to suffer punishment or pay damages might be 
 avoided by keeping well within the limits that separate 
 allowed from forbidden conduct, it may be fairly replied 
 that the most innocent persons are continually liable to be 
 brought near these limits in certain directions by their social 
 functions and relations. For example, an honest newspaper 
 editor cannot be sure of giving the law of libel a " wide 
 berth," a schoolmaster requires to know exactly what punish- 
 ments he may inflict, a tradesman how far he is responsible 
 for the quality of his goods, any owner of property how far 
 he may use violence to ward off encroachments on his rights. 
 Especially in the case of rights of property, the precisest 
 possible definition is often needed to prevent litigation and 
 ill-feeling even among persons sincerely anxious to act 
 rightly; since it is often the imperative duty of such 
 persons to enforce their pecuniary rights to the full, for 
 the sake of others whose interests they have in charge. 
 
 Then we have to take into account the further evils that 
 would result from inconsistency in the application of legal 
 rules. The decisions of judges would inevitably differ widely 
 assuming that no one was bound by precedents and the 
 general respect for law would suffer in proportion : especially 
 as the consequent inequality in the treatment of similar 
 cases could not but be felt as injustice. For, however men 
 may disagree in the application of the idea of justice, there 
 is one point on which they agree that similar cases should 
 be treated similarly. 
 
 I conclude, then, that the utmost attainable definiteness 
 in legal rules is on the whole to be regarded as a gain, sub- 
 ject to the condition, which has been assumed throughout 
 the preceding argument for definition, that the defined law 
 is capable of being known by the persons whose rights and 
 duties it determines. For to lay down laws with extreme 
 precision, but in such a manner as to render them practi- 
 cally unknowable by the persons who have to obey them, 
 would obviously fail to give the desired security : hence
 
 340 ELEMENTS OF POLITICS CHAP. 
 
 effective publication of a new statute is always held to be 
 essential to good government. 
 
 It may be replied, however, that this " cognoscibility," 
 to use Bentham's term of law, is an unattainable ideal : 
 since an ordinary member of a modern State could not 
 possibly know the elaborate system of legal rules that has 
 been gradually worked out to meet the requirements of the 
 complex society to which he belongs, even if they were 
 expressed and arranged in the clearest possible manner, and 
 purged from all historical survivals and useless technicalities. 
 This is certainly true, but no such extensive knowledge is 
 practically needed by an ordinary citizen : it is only a 
 minute fraction of the legal code of his country, varying 
 according to the nature of his calling and his social position, 
 that it would practically profit an ordinary citizen to know 
 for the ordinary business of his life ; while for rare and 
 important transactions it is no great burden that he should 
 have to take legal advice. It seems, therefore, expedient to 
 facilitate the acquirement by an ordinary citizen of such 
 knowledge of the laws of his State as practically concerns 
 him ; while, in order that the work of giving legal advice 
 and the administration of justice may be as economically 
 and effectively performed as possible, and that changes in 
 law may not be made ignorantly and unskilfully, it seems 
 no less expedient to render a knowledge of law easily attain- 
 able by legal advisers, pleaders, judges, and legislators. 
 
 3. Assuming then that we are to aim at making laws 
 as definite and as cognoscible as possible, let us consider 
 how far this result may be better attained by express legis- 
 lation, or by continuing the process of development through 
 judicial decisions, which has had so large a share in deter- 
 mining legal rules in earlier times. In the first place, it is 
 clear that, so far as definite and palpable changes in law are 
 demanded, in consequence either of changes in social con- 
 ditions or of increased insight into social needs, it becomes 
 more and more necessary, as the development of law goes 
 on, to obtain these by express legislation ; since, as we saw, 1 
 
 1 Chap. XIII.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 341 
 
 the process of judicial law-making tends to be confined 
 within continually narrowing limits in virtue of the very 
 principle that has rendered it possible the principle that 
 decided cases are binding judicial precedents. 
 
 Here it may perhaps be said that such changes in law 
 as may be needed at the present stage of social development 
 can hardly relate to what I have called the individualistic 
 minimum ; that the fundamental rights of personal security, 
 property, contract, etc., must have been long since determined 
 in any civilised State ; and that so far as exacter definition 
 may be required on doubtful points as, e.g., whether it is 
 murder to kill and eat a comrade on the high seas to avoid 
 starvation this definition is still best given by the judges. 
 And no doubt modern legislation is not mainly concerned 
 with the substantive law governing these fundamental rela- 
 tions of individuals, but either with the organisation of the 
 governmental machinery for securing them, or with interfer^ 
 ence that goes beyond the individualistic minimum. Still 
 there are questions of real, though minor importance, even 
 within the individualistic minimum, with which legislation 
 here and now has to deal : and it may be worth while to 
 give a few examples of these from recent English legislation. 
 
 To begin with personal security the general principle 
 is clear, that a man should be protected from injury 
 wilfully or carelessly caused by other men : but in apply- 
 ing the principle, new precautions are continually needed 
 against new dangers, which changes in social relations or 
 industrial conditions have rendered more formidable : and 
 it is a complicated and delicate matter to devise just the 
 right precautions, owing to the general risk that, in pro- 
 tecting the security of one individual, we may too much 
 hamper the freedom of others to perform useful social work. 
 Thus, e.g., to ward off perils from explosive substances it was 
 till lately thought sufficient to regulate their manufacture 
 and carriage, and their use under special circumstances, as in 
 mines : but some years ago, when the conjunction of revolu- 
 tionaries and dynamite intensified this peril in England, the 
 governmental protection was increased, partly by severer
 
 342 ELEMENTS OF POLITICS CHAP. 
 
 penalties on proved co-operation in criminal use of explosives, 
 but partly also by throwing on the possessor of the danger- 
 ous substance under suspicious circumstances the burden of 
 proving that he had it for a lawful object. 
 
 So, again, it requires much care to secure the reputation 
 of individuals from improper attacks without interfering with 
 the useful function of newspapers in spreading information 
 and criticism : and thus it was found that a more exact 
 determination of the law of newspaper libel was needed 
 some years ago : by which newspapers were made free of 
 any responsibility for reporting speeches at public meetings, 
 provided they inserted any contradictions or corrections sent 
 them by the speakers. 
 
 To turn to property : the main utilitarian principle on 
 which the institution of private property rests is the expedi- 
 ency of encouraging productive labour (and due care for 
 what has been produced) by securing the product to the 
 labourer : but in the case of intellectual products, such as 
 industrial inventions, it is impossible to do this without 
 some risk of interfering with the inventive enterprise of 
 other men ; and it needs a very careful regulation of the 
 conditions under which inventions are protected by patent, 
 in order to give adequate encouragement to the inventor 
 protected, while hampering other inventors as little as pos- 
 sible. Hence it is not surprising that changes in our Patent 
 Law should have been recently required, and that wider 
 changes should still be urged. And the same remark applies 
 to other immaterial products of labour which cannot be 
 appropriated as material things are. 
 
 As regards contract: I have already noticed the important 
 limitation of contractual obligations imposed by the law of 
 Bankruptcy, according to which debts of money cease to be 
 legally due from persons who have at some previous time 
 proved their inability to pay and given up their property for 
 division among their creditors. This limitation of the effects 
 of breach of contract is on the whole expedient, in order to 
 restore to insolvent persons adequate inducements to useful 
 industry : but it involves great risk of encouraging reckless
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 343 
 
 and improper dealing with borrowed resources ; and the 
 problem of reducing this risk to a minimum has been found 
 very difficult. The British Parliament has legislated on the 
 subject repeatedly and recently, but it cannot be confidently 
 affirmed that fresh legislation will not soon be needed. 
 
 4. We may, therefore, conclude that a Legislative organ 
 is continually needed, in a modern State, to secure the best 
 possible definition even of the individualistic minimum of 
 legal duty. 1 
 
 The need, however, of a continually active legislature 
 becomes more palpable and obvious when we admit the 
 necessity of governmental interference (with sane adults) 
 of the kind that I have called " indirectly individualistic " 
 
 1 Here I ought not to pass over altogether an important question which, 
 however, lies somewhat outside the subject discussed in this chapter, viz., 
 whether, with a view to the utmost attainable " cognoscibility, " legislation in 
 a modern State should not merely supplement deficiencies in the judicial 
 development of law, but should aim at covering the whole field, by codifying 
 the results of this development. On this question it befits a layman to 
 speak with brevity and reserve : but it seems undeniable that judge-made 
 law must ceteris paribus be less cognoscible than statute law ; since the 
 binding rules involved in judicial decisions, so long as they are not authori- 
 tatively extracted in a general form, have to be studied and reasoned about 
 as "embedded in matter," enveloped in the circumstances of the particular 
 case ; and this must render it more difficult to know and apply them. It 
 may be said that the codified law will inevitably have ambiguities and 
 inadequacies which will set the process of judicial interpretation and exten- 
 sion at work again, so that the obstacles to knowledge which codification 
 aims at removing will reappear : but they can hardly reappear to an equal 
 extent ; and there seems no reason why they should not be from time to 
 time removed by amending statutes. 
 
 On the other hand, it is said that ' ' to reduce unwritten law to statute is 
 to discard one of the greatest blessings that we have for ages enjoyed, in 
 rules capable of flexible interpretation." This was said by Mr. Justice 
 Talfourd in 1853. I do not know how far leading English and American 
 jurists at the present day who seem to be more impressed by the extreme 
 minuteness of the rules that have been worked out by a series of judicial 
 interpretations would be generally 'disposed to lay so much stress on the 
 " flexibility " of our law. But it must be admitted that, supposing equal 
 minuteness in the rules applied, there must be less flexibility in their 
 application when the judge is bound by express general statements of the 
 law, than when he is only bound by the general rules implied in judicial 
 decisions on particular cases : but it would seem that this additional 
 flexibility must be gained at the expense of definiteness as well as cognosci- 
 bility unless we suppose the written rules to be badly expressed.
 
 344 ELEMENTS OF POLITICS CHAP. 
 
 and " paternal " : such as the prohibition of insanitary 
 dwellings and food, and generally the enforcement of pre- 
 cautions against disease, the restriction of the sale of 
 intoxicants, the repression of gambling, the regulation of 
 such dangerous industries as mining and navigation, or the 
 manufacture of explosive substances ; and when we take 
 into account the State's duty to care for the interests of 
 others than sane adults especially to supervise the rearing 
 and training of children and protect them from parental 
 neglect and from any oppressive and injurious treatment. 
 And the need will be further increased if we include various 
 kinds of interference, which I before classified as "Socialistic," 
 in a wide sense of the term ; i.e. if Government is to regu- 
 late the use of natural resources rivers, forests, mines, sea- 
 fisheries and to make special laws for the tenure of land ; 
 to undertake a large share of the business of conveyance 
 and communication ; to monopolise coining and regulate the 
 issue of bank-notes. A fresh quantum of legislation will be 
 required if we admit interference with the special aim of 
 benefiting the poor, as by compulsory and partially gratuitous 
 education, poor-relief from public funds, compulsory and 
 state-aided insurance against sickness and old age. As we 
 have before remarked, an important amount of interference 
 under these various heads is actually undertaken by all 
 modern States, and the tendency at present is to extend it : 
 and it is obvious that so far as these measures involve 
 encroachments on freedom, legislation of a complicated and 
 delicate kind will be required, to render the action of govern- 
 ment in these various ways at once as useful and as little 
 mischievous as possible. 
 
 It is further evident that in order to carry out effectively 
 the various kinds of governmental interference which I have 
 classified as " indirectly individualistic," " paternal," and 
 " socialistic," the Executive will have to be made consider- 
 ably more extensive and complex. For instance, the regu- 
 lation of dangerous industries involves a need of new 
 functionaries of various kinds, to inspect the places in 
 which the industries are carried on, to give licences which
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 345 
 
 may be withdrawn if conditions are broken, to test and 
 certify the training of certain classes of skilled labourers ; 
 while, so far as Government does not merely regulate, but 
 actually takes certain departments of industry into its own 
 management, the work of the Executive may be further 
 enlarged and varied almost indefinitely. If governmental 
 interference in England were strictly limited to the indivi- 
 dualistic minimum, we should only require for executive 
 work leaving the external relations of the State out of 
 account something like the Home Office, together with 
 certain local authorities, to manage the machinery for pre- 
 vention and punishment of crime, and the Treasury to 
 manage the finances. It is because our State undertakes 
 so much further interference of the various kinds exem- 
 plified in the preceding paragraph that the functions of such 
 additional departments as our Board of Education, Local 
 Government Board, Board of Trade (so far as regulating 
 railways), and Post Office, are needed. 
 
 Here, however, it should be observed that the social 
 needs, which give occasion for governmental work going 
 beyond the individualistic minimum, are partly supplied 
 in England and other modern states, by private enterprise 
 and voluntary associations, or by philanthropic efforts 
 and funds given or bequeathed by private persons to 
 public purposes. One consequence of this is that the inter- 
 vention of Government in the arrangements for supplying 
 these needs does not necessarily involve the action of the 
 ordinary executive organ, or involves it only in a minor 
 degree. It may, in some cases, be expediently carried into 
 effect by legislation giving certain coercive powers to volun- 
 tary associations, commercial or uncommercial ; usually 
 under the condition of conforming to special regulations 
 laid down by the legislature. Thus, to take an instance 
 of a commercial association, an English railway company, 
 on account of the social importance of its work, is granted 
 a special power of compulsorily purchasing the land that 
 it requires, and in return for this privilege is required to 
 conform to regulations laid down by the legislature in
 
 346 ELEMENTS OF POLITICS CHAP. 
 
 respect of the rates that it charges for the conveyance of 
 goods and passengers. At the same time it has the power 
 of making, with the approval of the Board of Trade, " bye- 
 laws " for the regulation of its traffic, and attaching penalties 
 which law-courts will enforce to the breach of them. The 
 institutions, again, to which, in England, the exclusion of 
 unfit persons from the medical and legal professions respect- 
 ively is entrusted, come under the same general head. 1 
 Institutions of this kind, which we may call " semi-public," 
 afford a useful machinery for supplying certain social wants 
 better than the unaided and unregulated action of private 
 persons would supply them, without unduly increasing the 
 responsibilities or the powers of Government. 
 
 The semi-public character of such institutions has vari- 
 ous forms and degrees. Sometimes, as we have just seen, it 
 involves a share of the coercive function which is the 
 peculiar attribute of Government ; sometimes it is given by 
 special privileges of a non-coercive kind. Thus the Bank 
 of England is enabled to perform the public function of 
 providing an important part of the medium of exchange in 
 England, through its special privilege of issuing notes that 
 may be legally tendered in payment of all debts of money 
 (above 5), provided that such notes are expressed to 
 be payable to bearer on demand, and are actually paid by 
 the bank in legal coin whenever demand is made. Some- 
 times, again, the intervention of the State takes the form of 
 pecuniary assistance from public funds, given under certain 
 conditions : thus many of the universities of Great Britain 
 are to this extent under governmental control, though the 
 executive scarcely interferes in their administration. 2 
 
 1 These are, in the case of medicine, the colleges of physicians and 
 surgeons in England, Scotland, and Ireland, certain universities, and the 
 General Medical Council elected by these bodies : in the case of the legal 
 profession, the Inns of Court (for barristers) and the Incorporated Law 
 Society (for solicitors). It should, however, be said that the functions of 
 the Inns of Court have never been made the subject of legislation. 
 
 2 It is to be noted that sometimes the funds by which an institution is 
 supported are private in their origin and only public in their destination, 
 being derived from the donations or bequests of individuals. In this last 
 case the interference of government should not ordinarily go beyond the
 
 XIX METHODS AND INSTRUMENTS OF GOVERNMENT 347 
 
 It is to be observed that differences similar to those 
 just noted are found in the executive business performed 
 by governmental officials. The most important part of 
 this business consists in interference of a coercive kind with 
 the freedom of individuals, e.g. in preventing and punishing 
 crime and levying taxes. But there are other parts of 
 governmental work, especially of the kinds that I have 
 classed as socialistic, which are usually not coercive, except 
 in the indirect way of requiring funds that have to be raised 
 by taxation ; and sometimes not even to this extent, since 
 such work may be carried on remuneratively, just like 
 a private commercial enterprise. Thus, for instance, the 
 business of various kinds carried on by the Post Office 
 in England yields a large annual surplus to the State ; and 
 though the main part of this business the transmission of 
 letters and telegrams is protected by a monopoly, and so 
 far involves coercive interference with the ordinary rights 
 of individuals, this is not the case with the conveyance of 
 parcels, nor with the insurance and savings bank business 
 performed by the same department. In these latter cases, 
 then, the coercive element of governmental interference is 
 altogether wanting ; the businesses are regarded as govern- 
 mental, because they are supported by public credit, and 
 carried on by officials appointed by government, but these 
 officials in dealing with other members of the community 
 have only the same rights as the ordinary law secures to 
 private persons. 
 
 5. The distinction between coercive and non-coercive 
 functions should be carefully kept in view when we turn to 
 consider the question, of fundamental importance in govern- 
 mental construction, as to the relation of the executive to 
 the legislature. So far as the functions of the executive are 
 internal and coercive, it has been assumed throughout that 
 they will normally be limited by law ; i.e. I have assumed 
 
 supervision necessary to prevent such funds from being misapplied, with 
 occasional revision and modification of the rules under which they are 
 applied, when circumstances have rendered their original application no 
 longer expedient.
 
 348 ELEMENTS OF POLITICS CHAP. 
 
 that, whenever the executive may invade by physical acts, 
 or restrict by commands, the ordinary private rights of 
 citizens, it will do this strictly in accordance with laws that 
 withdraw or limit these rights, in the special case of the 
 persons concerned, either by way of penalty or for some 
 special end of public utility. This condition is generally 
 necessary to realise the security that the laws are designed 
 to give to private persons. For the power of interference 
 with ordinary private rights, which for the mere defence of 
 these rights it is needful to vest in the executive, involves, 
 to use Bentham's phrase a formidable " sacrifice of 
 security to security " ; and, in order to minimise the sacri- 
 fice, it is important to place the exercise of this power under 
 close and carefully planned legal restrictions, of which 
 the well-known limitations on the power of arresting on 
 suspicion of crime, and detaining in prison before trial, and 
 on forcible entry into private houses, are familiar examples. 
 We may assume, then, that normally l the coercion of the 
 executive will be exercised under the restraint of laws 
 defining carefully the limits of its interference with the 
 ordinary rights of members of the community. And if 
 this restraint is to be thoroughly effective, the executive 
 that is not to break these laws must not alone have the 
 power to make them : the supreme authority to modify 
 these laws must be vested in a legislative organ, wholly 
 or to an important extent distinct from the executive. But 
 it may perhaps be questioned whether the executive should 
 be any further subjected to rules laid down by a legislature 
 distinct from it. We can conceive the legislative and 
 executive organs to work effectively in complete mutual 
 independence as regards appointment, organisation, and 
 methods of procedure ; the former determining the rules 
 
 1 As I afterwards admit, it seems necessary that the executive should 
 have a power in exceptional emergencies of infringing the ordinary rights of 
 private citizens in ways not capable of being specifically denned beforehand ; 
 but I hold that some constitutional security ought to be provided to ensure 
 that this governmental illegality is confined to the rare cases in which ex- 
 ceptional circumstances justify it.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 349 
 
 that the citizens generally should obey, and the maximum 
 and minimum penalties they should suffer for disobedience ; 
 the latter determining at its own discretion within the 
 limits fixed by the legally secured rights of private citizens 
 the instruments and methods for repressing disobedience, 
 enforcing punishment and reparation, and otherwise attain- 
 ing the ends of government. 
 
 The case, however, is different when we consider the 
 relation of the executive to the organ which we have seen 
 to be required for the ultimate control over governmental 
 finance. The coercive work of the executive cannot be 
 made self-supporting ; hence the need of obtaining funds 
 for its support will tend to bring it within the control of 
 the money-granting organ, whose duty it will be to examine 
 carefully any costly changes that may be proposed in the 
 organisation of the executive, and to use its power of the 
 purse to secure economy as well as efficiency in its con- 
 struction and operations. This is equally true of the 
 usually larger expenditure caused by the need of providing 
 for resistance to foreign aggression. If the heads of the 
 executive were at liberty to organise the army and navy 
 and civil service as expensively as they thought fit the 
 money-granting organ being bound to find funds for the 
 expenditure thus entailed the financial control of this 
 organ would become insignificant, and the protection from 
 over-taxation that it is designed to secure to private citizens 
 would be almost illusory. 
 
 And this financial reason for establishing control over 
 the executive applies also to its non-coercive work. The need 
 of such control is obvious, so far as this work is financially 
 onerous to the State. It is not quite so clear in the case of 
 any branch of governmental industry which yields a profit : 
 still it seems on the whole desirable, with a view to the 
 careful adjustment of the supply of public funds to the 
 needs of national expenditure, that the control of the 
 money -gran ting organ should extend over the whole of 
 governmental finance; especially since any non- coercive 
 branch of governmental industry, even though it may
 
 350 ELEMENTS OF POLITICS CHAP. 
 
 be actually yielding a profit, will usually entail a certain 
 liability on the general public exchequer. 
 
 Now, in modern States generally, the legislature is 
 identical in the main, if not altogether l with what I 
 have called the " money-granting " organ. And there are 
 obvious reasons why this identification is desirable, since 
 many important kinds of governmental interference require 
 both legislation and expenditure of public money ; and in 
 such cases the division of responsibility, which would result 
 if legislation and money-granting were allotted to separate 
 bodies, would not conduce to the desirable combination 
 of efficiency and economy. Indeed, the body that had 
 the ultimate control over finance could hardly be pre- 
 vented from acquiring an indirect but important control 
 over all legislation involving fresh expenditure. I shall 
 accordingly assume in what follows that the legisla- 
 tive organ has also the function of determining taxation 
 and supervising the expenditure of Government. But 
 further, there are important considerations apart from 
 the financial which render it desirable to place the pro- 
 cedure, if not the organisation, of the executive under the 
 control of the legislature as such. In the first place, so far 
 as it is necessary for the efficiency of any department of the 
 service of Government that the persons employed in it 
 should be subject to severer penalties for breach of rules 
 than would be imposed for the breach of ordinary contracts 
 of service as is commonly held to be the case with military 
 forces it is important that these penalties, and the rules for 
 breach of which they are to be inflicted, and the procedure 
 for determining their infliction in any particular case, should 
 receive the sanction of the legislature. A reason of wider 
 application is that, owing to the inevitable imperfection of 
 law, there will always be some danger that the exercise of the 
 
 1 Measures for raising revenue are generally regarded as a species of 
 legislation, to be determined by the same bodies that determine other kinds 
 of legislation ; but where the legislature consists of two chambers as is 
 usually the case the distribution of the powers between the two chambers, 
 in respect of measures for raising revenue, is often different from their 
 distribution in respect of legislation generally.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 351 
 
 power of the executive may become practically oppressive 
 without being illegal. Hence it seems desirable, for the 
 fullest possible security to the citizens generally, not only 
 that this formidable power should be kept strictly within 
 the limits of the law, but also that its exercise within these 
 limits should be subjected to the watchful criticism of the 
 legislature ; partly because the careful performance of this 
 function of critical supervision is likely to throw light on 
 defects in the law capable of being removed by new legis- 
 lation, 1 partly in order that the desire of avoiding incon- 
 venient legislative restraints may itself operate as a moral 
 restraint on the executive. 
 
 6. It may be expedient that some part of the regulation 
 that I have summarily described should be withdrawn from 
 the control of the ordinary legislature, and settled on a 
 comparatively permanent footing by constitutional rules 
 more stable than ordinary laws, being only capable of 
 modification by a more elaborate and tardy process than 
 ordinary legislation. 2 Still, the reasons just given would 
 seem to justify the allotment to the ordinary legislature of 
 so much power of control over the executive organ as to 
 place the latter normally in a relation of subordination to 
 the former. And indeed this relation of subordination is 
 implied in the term " executive " : which properly denotes 
 an organ whose function it is to carry out the orders of 
 some other organ. In fact this implication has caused some 
 writers to object to the term as applied to the high officials 
 in modern States kings or presidents and their ministers 
 who are the heads of what I have called the " executive " 
 departments of government. It is urged that the popular 
 designation of these officials as " the government " is really 
 more correct : since within wide limits they form and 
 ought to form resolutions and issue orders, general as well 
 as particular, on their own responsibility. I think it is 
 true that, for the effective performance of governmental 
 
 1 I do not here assume that the executive will be, formally or practically, 
 appointed and dismissed by the legislature. 
 
 2 See Chap. XXVII.
 
 352 ELEMENTS OF POLITICS CHAP. 
 
 functions, monarchs or ministers must have normally some 
 power of making general rules to which not only their 
 subordinates but other citizens also, under certain circum- 
 stances, have to conform. 1 But this does not render 
 the term Executive inappropriate to describe the normal 
 duties of these officials, so far at least as the internal func- 
 tions of government are concerned : since, in internal affairs, 
 the general character of normal governmental interference 
 is capable of being defined by law, and must be expected to 
 be so defined in an advanced modern community in which 
 legislation is active: 2 so that the special ordinances and 
 regulations which the heads of the (so-called) executive 
 departments issue are properly conceived as carrying out the 
 general design of the legislature. It is true, again, that 
 under exceptional circumstances, it may be the duty of the 
 so-called executive to take measures, not capable of being 
 defined beforehand, for preserving order or protecting the 
 interest of the community from serious detriment, and that 
 such measures may inevitably conflict with established legal 
 rules. But I conceive that it should be the aim of states- 
 men to keep such justifiable illegality within the narrowest 
 possible limits : and it seems reasonable in our constitu- 
 tional terminology to take account of the normal relations of 
 the different organs of government rather than the abnormal. 
 The case is, I admit, different as regards foreign affairs. 
 In the first place, it is, generally speaking, an import- 
 ant part of the business of the organ of government that 
 deals in the name of a State with other States and their 
 members, to conform to the established rules of international 
 duty which do not rest on the authority of any one State's 
 
 1 See p. 358. 
 
 8 In a State whose constitution has had a gradual development, the 
 powers of the executive, like the rights of private persons, will probably be 
 to an important extent determined by custom and precedent, and not ex- 
 pressly conferred by statute. But all such customary law is to be regarded 
 as modifiable by legislation of some kind in a modern State : and it seems 
 clearly convenient that the law governing the operations of the executive 
 should be to a great extent, if not altogether modifiable by the ordinary 
 legislature, in order that the changes which we must expect to be required 
 from time to time may be effected without undue delay.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 353 
 
 legislature, and therefore ought not to be regarded as 
 normally modifiable by any such legislature ; although the 
 latter may sometimes have to give an authoritative defini- 
 tion or interpretation of certain international rules for the 
 guidance of members of its own State. And further, within 
 the limits prescribed by international law and morality, it 
 seems clear that the legislature could not conveniently 
 determine the conduct of war or negotiations by general 
 rules in anything like the same degree as the internal 
 functions of government; owing to the extent to which 
 wise management of foreign relations must vary with vary- 
 ing combinations of circumstances incapable of being fore- 
 seen. The legislature must either in the decision of these 
 matters leave a very wide discretion to king or minister, or 
 else itself take part in the decisions, and so go beyond the 
 sphere of legislation. 
 
 I admit, therefore, that the term " executive " is not 
 quite appropriate to denote the power and function ex- 
 ercised by the organ of government that deals, in the 
 name of the community, with foreign states. Still, as 
 we have seen, this power and function cannot well be 
 separated from the internal executive power and function, 
 as regards the highest direction, the ultimate control of 
 both : since for either the whole organised physical force 
 of the community may be needed in the last resort. I 
 propose, therefore, to take the term " executive," as imply- 
 ing that the organ of government so denoted acts to a 
 great extent under rules laid down by the legislative 
 organ, and with a general duty of carrying out the inten- 
 tions of that body. 1 
 
 7. It will be seen that the same general considerations 
 which have led us to regard the executive as normally 
 standing to the legislature in a relation of subordination, 
 also tend to show that the subordination should not go so 
 
 1 It may be noticed that the word "administrative," which some writers 
 e.g. G. C. Lewis, Government of Dependencies, p. 13 prefer to use to 
 denote the functions that I call "executive," equally implies subordination 
 to some higher authority. 
 
 2A
 
 354 ELEMENTS OF POLITICS CHAP. 
 
 far even in matters of internal administration as to make 
 the legislature practically the supreme executive. For, if 
 this were the case, then the security against oppression, 
 given by its critical supervision of the executive, would be 
 lost : another independent organ would be required to watch 
 and criticise the legislature. 
 
 It may perhaps be asked, why should not, in any case, 
 the danger of oppression by the legislature be as formidable, 
 and call for as vigilant precautions, as the danger of 
 oppression by the executive ? I should answer, first, that 
 the need of guarding against legislative oppression un- 
 doubtedly exists, and is as we shall hereafter see recog- 
 nised as a fundamentally important consideration in 
 determining the constitution of the legislature. 1 At the 
 same time the legislative danger seems to be less perpetual 
 and pressing : since, as G. C. Lewis says, " there is a 
 great difference between deliberate, universal, and avowed, 
 and unpremeditated, particular, and casual rapacity and 
 injustice. Many governments which habitually act towards 
 their subjects in the most oppressive manner would be 
 ashamed to reduce the maxims by which they are in fact 
 guided into the form of a law, and to publish it to their 
 subjects and the whole civilised world." 2 
 
 It seems then desirable that the executive organ should 
 be not only distinct from the legislature or at least from 
 that part of the legislature that exercises the function of 
 critical supervision but also in some degree independent of 
 it : though, as we shall hereafter see, it is a somewhat 
 difficult problem to determine how far this independence 
 should go, or by what means it may best be secured. 8 
 Similarly, the expediency of keeping the judicial organ 
 separate from and independent of the executive may be 
 inferred from what has been already said of the importance 
 
 1 When an assembly, periodically elected by the citizens at large, is a main 
 part of the legislature, we may presume that the desires and alarms of the 
 private persons who may suffer from or fear oppression will find adequate 
 utterance in this assembly. 
 
 2 Government of Dependencies, Preliminary Enquiry, p. 30. 
 
 3 See Chap. XXII.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 355 
 
 of keeping the executive within the restraints of law : since 
 such restraints can hardly be expected to be effective unless 
 the question whether acts done by executive officials are or 
 are not illegal can be referred in the last resort to the 
 judicial decision of some organ distinct from the executive. 
 Whether this organ should be an ordinary law court, or 
 whether a special court should be established to deal with 
 charges brought against executive officials, will be considered 
 in a subsequent chapter (XXIV.). 
 
 The expediency of making the judicial organ distinct 
 from and independent of the legislature is no less obvious, 
 so far as the ordinary legislature is bound to conform to 
 constitutional laws which can only be modified by an extra- 
 ordinary legislature : since in this case no less than in 
 that of the executive the obligation of conforming to law 
 cannot be effectually enforced, unless there is a judicial 
 body independent of the legislature, competent to pronounce 
 on the validity of legislation. How far such constitutional 
 limitations on the authority of the ordinary legislature are 
 necessary or desirable will be hereafter considered. Where 
 there are no such limitations or none having legal force 
 the need of separating legislative and judicial functions is 
 less obvious. 1 Still, even in this case, it seems clear that if 
 
 1 The summary argument for this separation, repeated by several writers 
 after Montesquieu, appears to be based on the assumption that if the judica- 
 ture had the power of legislating, any tribunal would necessarily have or 
 assume the right of legislating ex post facto, and therefore of deciding the 
 cases brought before it arbitrarily. Thus Montesquieu writes, in his famous 
 chapter on the English Constitution, "Si la puissance de juger etait jointea 
 la puissance legislative, le pouvoir sur la vie et la liberte des citoyens serait 
 arbitraire " (Esprit des Lois, B. xi. ch. vi.). Similarly, Blackstone says (I. ch. 
 vii.), "Were [the judicial power] joined with the legislative, the life, liberty, 
 and property of the subject would be in the hands of arbitrary judges, whose 
 decisions would then be regulated only by their opinions, and not by any 
 fundamental principles of law." So Paley (Moral Philosophy, Book VI. ch. 
 viii. ), " It is evident, in the first place, that the decisions of such a judicature 
 would be so many laws ; and in the second place, that, when the parties and 
 the interests to be affected by the laws were known, the inclinations of the 
 lawmakers would inevitably attach on one side or the other ; and that where 
 there were neither any fixed rules to regulate their determinations, nor any 
 superior force to control their proceedings, these inclinations would interfere 
 with the integrity of public justice." But the identity of organs does not
 
 3$6 ELEMENTS OF POLITICS CHAP. 
 
 the two functions are given to the same organ, there will be 
 a certain danger of confusion between them, tending to blur 
 the fundamental distinction between the law as it is and 
 the law as it ought to be. It is also important for justice 
 that law should be applied according to an established and 
 impartial method of interpretation : and this result is more 
 likely to be secured if those who apply the law are not 
 responsible for laying it down. Moreover, an independ- 
 ent judiciary gives a security that equal justice will be 
 done in disputes between legislators and private persons. 
 Also the advantages of " division of labour " are an im- 
 portant consideration : the work of the judiciary, in an 
 advanced society with a complicated system of law, must 
 require a concentration of energy which will hardly be 
 maintained if the business of legislation is superadded. It 
 may be added, anticipating the result of subsequent dis- 
 cussions, that the kind of organ which, according to the 
 received view in modern States, is best adapted for legisla- 
 tive functions is not well adapted for judicial or indeed 
 for executive functions ; partly from its size and com- 
 plexity, partly from its mode of composition. 
 
 8. We have thus arrived at the conclusion that the 
 work of government should be distributed under three main 
 heads, as Legislative, Executive, and Judicial, each division 
 being allotted to a separately constituted organ. This 
 result is broadly in accordance with the actual constitutions 
 of modern States : and I shall accordingly adopt it as 
 determining the main outlines of the structure of govern- 
 ment, which will be worked out into further detail in the 
 chapters that follow. I think it, however, important to 
 show that this triple division of governmental work cannot 
 
 necessarily imply a confusion of processes : and it seems extravagant to sup- 
 pose that the judges would avowedly and habitually disregard an elementary 
 principle of justice, viz. that the law by which an act is judged should be 
 law established and promulgated at the time that the act was done ; or to 
 suppose that, as a body, they would be blind to the evil consequences of con- 
 tinually altering general rules of law to suit their inclinations in any par- 
 ticular case. Besides, it would obviously be easy to arrange that no single 
 tribunal, but only a collection of tribunals sitting together, should exercise 
 the legislative function.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 357 
 
 well be made complete. For this purpose, I shall now 
 examine somewhat more closely the meaning of the funda- 
 mental terms that we have adopted to denote these organs 
 and functions ; in order to ascertain (1) how far the general 
 notions of the functions are clearly distinguishable, and 
 (2) how far the functions, as distinguished, are conveniently 
 separable. 
 
 In this examination we must, of course, discard the 
 associations and habits of thought which lead us to consider 
 anything done officially by a judge as a judicial act, to take 
 any Act of Parliament for a piece of legislation, and to 
 regard the regulations laid down by the Privy Council, or 
 by individual Ministers, as essentially different from legis- 
 lation. We must give the terms a purely abstract mean- 
 ing, independent of the actual distribution of governmental 
 functions in England or elsewhere. 
 
 1. Generality of application appears to be an essential 
 feature in the notion of a " law " ; legislation, therefore, 
 according to its most obvious abstract definition, will be the 
 laying down of general rules, enforced by penalties of some 
 kind, either for the conduct of members of the community 
 generally, or for the members or servants of government. 
 Now it seems clearly impracticable to lay down that all 
 general rules required to control the conduct of subordinate 
 members of the executive must be framed by the legislature ; 
 thus depriving the heads or councils that have supreme 
 executive authority in different departments of the power 
 of giving general orders to their subordinates. Hence 
 legislation, as thus defined, so far as it directly affects 
 persons in the service of government and indirectly other 
 members of the community who have dealings with them 
 must clearly be shared with the executive. It is, how- 
 ever, possible to restrict the notion of " legislation " to the 
 function of laying down rules directly binding on members 
 of the community other than the servants of government : 
 and we have already seen that it is broadly and generally 
 desirable, for the security of the governed, that the legisla- 
 tive function in this restricted sense should be vested
 
 358 ELEMENTS OF POLITICS CHAP. 
 
 in an organ distinct from the executive. But it would be 
 highly inconvenient to carry this principle so far as to 
 leave the executive no power of laying down such rules. 
 Not only at exceptional crises of which I have before 
 spoken but ordinarily wherever it is desirable that govern- 
 mental regulations should be elastic, varying with circum- 
 stances, and easily modifiable from time to time in accord- 
 ance with the results of experience, as, for instance, in 
 enforcing precautions against infectious diseases it seems 
 expedient to let the details of these regulations be deter- 
 mined by the executive organ. On this view, therefore, the 
 executive must have a share of the legislative function, 
 even if taken in the narrowest abstract sense that seems 
 at all admissible ; and we have already seen that this must 
 also be the case to some extent with the judicature, so far 
 as judicial precedents are held to be binding. 
 
 2. It is a less easy matter to distinguish " judicial " and 
 " executive " functions in the work of applying law to par- 
 ticular cases even if we restrict the term " laws " to rules 
 laid down by the legislature. In discussing this distinction 
 since the functions classed as executive are, as we have 
 seen, multifarious, it seems best to begin by framing 
 a definite general conception of judicial functions. We 
 should, I think, agree to apply the term " judicial " to any 
 proceeding by which a competent authority determines the 
 question whether a person has, by violating a law, deserved 
 a legal penalty, or whether he possesses a certain legal right, 
 or is subject to a certain legal liability, that another dis- 
 putes with him. Now, doubtless, the non-coercive part of 
 executive business has no affinity with judicial business, as 
 thus defined ; e.g. the purchase of articles for the army and 
 navy, the coining of money, the conveyance and delivery of 
 letters, the maintenance of schools, the economic manage- 
 ment of public property. The same may be said, for the 
 most part, of such coercive work of the executive as con- 
 sists in carrying out decisions of judges ; e.g. the execution 
 or imprisonment of a convict. But there are other indis- 
 pensable kinds of coercive interference which have to be
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 359 
 
 performed before or apart from any decisions arrived at by 
 the judicial organ : and in this region the distinction be- 
 tween executive and judicial functions is liable to be evanes- 
 cent or ambiguous, since executive officials have to " interpret 
 the law " in the first instance, and they ought to interpret 
 it with as much judicial impartiality as possible. 
 
 Consider, for example, the arrest of persons suspected of 
 crime. In England when such arrest is made as is some- 
 times necessary without a warrant, we regard it as an 
 executive act, whereas the issuing of a warrant to arrest is 
 commonly regarded as a judicial act : but there seems to be 
 no essential difference between the intellectual process by 
 which a constable decides to arrest without a warrant and 
 that by which a magistrate decides to issue a warrant. 
 Similarly, when an executive official has to estimate the 
 value of an individual's property, with a view to direct 
 taxation, he ought to be guided by precisely the same con- 
 siderations as would determine the decision of a judge if a 
 disputed estimate were brought before him. Again, so far 
 as the rules for the management of convicts undergoing 
 imprisonment are legislatively determined, the executive 
 officials who manage the prisons have to exercise essentially 
 judicial functions in deciding whether and how far convicts 
 are to be punished for violation of rules. But further, in 
 the prevention of mischief unintentionally caused by men, 
 or due to other than human agency, and in the regulation 
 of industries dangerous to moral and physical wellbeing, 
 there are various minor kinds of governmental interference 
 which it is difficult to class decisively as " executive " or 
 " judicial " ; such as the issue of orders to remove or destroy 
 public nuisances and the issue of licences to follow certain 
 trades. Perhaps we may say that in such cases, where the 
 official has a discretionary power to act or not to act, accord- 
 ing to considerations of expediency, the function is properly 
 regarded as executive ; but even so, it involves at least a 
 quasi- judicial application of the law, if the power is exercised 
 justly, and with due regard to the private interests affected 
 by it. Finally, the control exercised by the heads of depart-
 
 36o ELEMENTS OF POLITICS CHAP. 
 
 ments over salaried and dismissible subordinates must involve 
 judicial, or quasi-judicial work, so far as the tenure of office 
 is legally or practically on " good behaviour " ; since, in 
 inflicting the penalty of dismissal, the superior will have to 
 consider not whether it would be advantageous to get rid 
 of the subordinate, but whether he has committed a suffi- 
 ciently grave breach of duty ; l and this judicial function is 
 of course increased in importance when the superior has to 
 apply the specially stringent rules and severe penalties 
 which are held to be necessary in the case of military 
 service. 
 
 On the other hand, considerations of particular ex- 
 pediency, similar to those that normally determine executive 
 decisions, are not to be altogether excluded from the processes 
 of strictly judicial reasoning; for instance, in deciding on 
 the punishment to be allotted to a criminal, it may be a 
 judge's duty to consider whether an example of severity is 
 required at the particular place and time. 
 
 It should be added that it would be inconvenient not to 
 give the judiciary some power of making decisions and 
 issuing orders (besides the warrant before-mentioned) which 
 must be regarded as executive rather than strictly judicial : 
 that is, for the arrangement of judicial business, the fulfil- 
 ment of prescribed forms of procedure by parties to actions, 
 the maintenance of order during trials ; for the summoning 
 of witnesses, and as to the mode of investigation of facts 
 relevant to the issues tried ; and for the execution of such of 
 their decrees as are unresisted. 
 
 3. Let us now consider how far it is possible or desir- 
 able to withdraw from the legislature the power of making 
 decisions, whether of the executive or the judicial kind, on 
 individual cases. In Rousseau's famous theory of the sover- 
 eignty of the people, fundamental importance is attached 
 to the separation of this function from that of legislation. 
 The people, he holds, have inalienable supreme legislative 
 power ; no law can be binding on a people but such as is 
 
 1 How far it is desirable that an appeal should be allowed in such cases 
 to an independent tribunal will be considered later. See Chap. XXI. 5.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 361 
 
 the expression of its general will ; but the general will, to 
 be really such, must be general in its object as well as in 
 its essence ; it must " proceed from all in order to be applied 
 to all " ; it " changes its nature " and " loses its natural 
 rectitude " when it aims at an " individual and determined 
 object." l 
 
 It does not, however, appear possible to attain the ends 
 of legislation without rules that are particular in their 
 application, allotting special duties or special exemptions 
 to particular classes of persons on the ground of special 
 circumstances. And this being so, it does not seem possible, 
 by any constitutional rule, effectually to prevent the legisla- 
 ture from dealing with individual cases if it be disposed to 
 do so ; since any individual case is practically distinguishable 
 from all other cases by a combination of general character- 
 istics ; and it would be hardly practicable to lay down that 
 no general rule should be valid if it were not in fact appli- 
 cable to more than one individual. 2 Nor would it conduce 
 to real equity to preclude the legislature from making 
 exceptional regulations to meet exceptional cases. Hence, 
 though the principle which Eousseau laid down, regarded 
 as a general maxim for the guidance of a legislative organ, 
 appears to me sound, I do not think that the protection 
 against legislative injustice which he has in view can be 
 satisfactorily secured by any restrictive definition of legis- 
 lative functions. For the same reason, if the independence 
 of the executive is to be effectually secured against encroach- 
 ment on the part of the legislature, it must be by some 
 expedient other than that of confining the legislature to the 
 function of laying down general rules ; either the legislature 
 must be precluded from dealing at all with certain adminis- 
 trative matters such as selection of officials, organisation 
 
 1 Control Social, II. chap. iv. 
 
 2 It may be observed that many important governmental acts are at once 
 general and individual in their effects, according to the point of view from 
 which they are regarded. E.g. the annexation of a new territory is a decision 
 that deals with an "individual and determinate object" ; but in its effect 
 on the inhabitants of the territory it is usually equivalent to a complex 
 system of strictly legislative changes.
 
 362 ELEMENTS OF POLITICS CHAP. 
 
 of the army, peace and war, and treaties with foreign states 
 or the executive in its turn must have some control over 
 legislation. 
 
 Still more clear is it that this distinction between 
 " general " and " particular " decisions cannot be usefully 
 applied to limit the financial control of the legislature over 
 the executive. It is, no doubt, easy to distinguish the 
 laying down of general rules of taxation, as a properly 
 legislative function, from the actual collection of the taxes, 
 or the estimation of private property for the purpose of 
 taxation, which are properly executive. But if the financial 
 control of the legislature is to be effective, it must obviously 
 have the power of examining particular details of expendi- 
 ture and appropriating funds to particular purposes. 
 
 The need of subordinate executive officials clerks, mes- 
 sengers, etc. for the transaction of the business of a legis- 
 lative assembly, is a point of minor importance, which it is 
 sufficient merely to mention. 
 
 4. It is more easy to frame constitutional rules restrain- 
 ing the legislature from exercising strictly judicial functions. 
 However unlimited may be the power assigned to the legis- 
 lature of modifying the future, legal rights of the governed, 
 this may be kept quite distinct from the power of allotting 
 punishments or damages for an alleged past breach of 
 law ; and there seems to be no difficulty in precluding 
 the legislature from exercising this latter power, either 
 directly by a " bill of pains and penalties," or indirectly by 
 " ex post facto " legislation. It may be said that this re- 
 striction will be merely formal; since the legislature will 
 still be able to inflict on any citizen any injury that it may 
 desire to inflict, only not avowedly as a penalty. But (1) 
 there is no reason why the ordinary legislature should not 
 be constitutionally precluded from ordering certain kinds of 
 injuries such as death or personal chastisement to be 
 inflicted on the citizens, otherwise than as judicial penalties ; 
 and (2) even if it is not so precluded, the moral restraint of 
 a constitutional prohibition against punishing for past acts 
 is likely at least to prevent the legislature from any invasion
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 363 
 
 of the established rights of individuals which could not be 
 plausibly defended unless regarded as a penalty. 
 
 Still, though the withdrawal of judicial functions from 
 the legislature is to this extent possible, and, for the reasons 
 before given, generally desirable, there are certain excep- 
 tional cases in which it would be either plainly or probably 
 inexpedient. For instance, if the legislative organ as is 
 actually the case in modern States consists in whole or in 
 part of one or more numerous assemblies, it seems desirable 
 to give these assemblies the final determination of penalties 
 for breaches of order at their meetings, with a view to the 
 due maintenance of their dignity and the prevention of or- 
 ganised disturbance of their debates. It has also been 
 widely held that such assemblies should have the power of 
 punishing outsiders for attempts to obstruct or prevent 
 legislation by intimidating legislators or otherwise ; that, if 
 representative, they should have the power of deciding con- 
 tested elections of their members ; and that judicial proceed- 
 ings against highly placed members of the executive or 
 judicial organs should be conducted by the legislature. 
 These, however, are more doubtful questions, the considera- 
 tion of which must be reserved for subsequent chapters. 
 
 On the whole, the conclusion seems clear that the separa- 
 tion of governmental functions among the organs which we 
 have distinguished as legislative, executive, judicial, cannot, 
 from the nature of the case, be complete, notwithstanding 
 the strong general reasons that we have seen for establishing 
 it. Still, we may say that the business of the legislature 
 at least in internal affairs l should be mainly to modify 
 the general rules of law and determine taxation ; the busi- 
 ness of the judicature, mainly the judicial application of law 
 to individual cases ; the business of the executive, all else 
 that has to be done to carry laws into effect. And we may 
 say that while judicial decisions will almost entirely relate 
 to questions of strict right and duty, executive decisions 
 will be largely determined by considerations of particular 
 
 1 How far the legislative organ should intervene in the management of 
 foreign affairs is a difficult question, which will be hereafter considered.
 
 364 ELEMENTS OF POLITICS CHAP. 
 
 expediency, which will but rarely enter into judicial 
 reasonings. 
 
 Before concluding this preliminary survey, we have 
 to take note of another distribution of the work of govern- 
 ment, which cuts across the lines of division which we have 
 so far been examining : I mean the distribution between 
 central and local organs. In an earlier chapter we briefly 
 considered certain reasons why the operations and effects 
 of government should vary somewhat from district to dis- 
 trict within the limits of the same State : we have now to 
 observe that partly for these reasons, partly on grounds 
 that will be considered in subsequent chapters it is 
 universally held to be desirable that certain portions of 
 governmental work should be allotted to organs whose sphere 
 of operation is confined to particular local divisions of the 
 territory. As we shall see, the extent of the powers vested 
 in local governments will reasonably vary very much, 
 owing to differences in the internal constitution and circum- 
 stances of different political societies ; but it is generally 
 held to be desirable that the local executive organs of 
 government should be, at anyrate to some extent, independ- 
 ent of the central executive. There will therefore be a 
 need of rules determining the division of functions, laid 
 down either by the ordinary central legislature or else by 
 the extraordinary legislature that has the function of making 
 changes in the constitution. And if it is thought desirable 
 that there should be not only division of functions between 
 central and local governments, but also some supervision of 
 the latter by the former, it may be convenient to constitute 
 one or more special departments of the executive for the 
 purposes of this supervision. 
 
 9. In conclusion, before we pass to discuss the details of 
 governmental construction, it may be well to consider a 
 general doubt as to the utility of the whole discussion, 
 similar to that which met us in treating of international 
 relationa 1 It is thought by some that granting the 
 value of clear principles for determining how governments 
 1 See Chap. XV. 1.
 
 xix METHODS AND INSTRUMENTS OF GOVERNMENT 365 
 
 ought to act no similar gain can reasonably be expected 
 from any general conclusions as to the manner in which 
 they ought to be constructed. For political constitutions, 
 it is said, like other organic structures, grow and are not 
 made : if ever they appear to be made, the appearance is 
 illusory : the new constitution in such cases with what- 
 ever deliberation and precision it may be laid down in a 
 fundamental statute has never real vitality except so far 
 as it expresses the result of a natural process of social 
 change, which determines its fundamental character. The 
 most that a statesman can do is, by watching carefully 
 these natural processes, to mitigate and shorten the organic 
 disturbances which they are liable to cause in the body 
 politic at critical stages. In short, principles of ordinary 
 legislation may be useful as rules of diet are ; but there 
 can be no practical advantage in considering how the 
 fundamental structure either of the individual or the social 
 organism might be improved. 
 
 There is an element of truth in this view : but on the 
 whole it must be regarded as a hasty generalisation from 
 certain parts of political history to the neglect of other 
 parts ; and, especially, it fails to apprehend the distinctive 
 characteristics of political change in the present stage of 
 development of European states and their colonies. In this 
 stage initiated more than a century ago the " natural 
 process of organic growth " in states takes, to an important 
 extent, the form of a movement of opinion : and, in the 
 great majority of the countries sharing West European 
 civilisation, large and fundamental changes in polity, in a 
 great measure determined by this movement of opinion, 
 have been introduced in the " constitution- making century " 
 which is now (1896) approaching its termination. No doubt 
 such changes, even when most extensive, are only partial, and 
 leave large portions of the previous organisation of govern- 
 ment unaltered; but experience shows that there is no 
 important organ, central or local, which they may not 
 affect ; and a careful consideration of the principles on 
 which they ought to be made, seems as likely to be bene-
 
 366 ELEMENTS OF POLITICS CHAP, xix 
 
 ficial here as in the case of ordinary legislation. Again, it 
 is quite true that new governmental institutions, hastily 
 introduced without due regard to the special characteristics 
 and previous history of the people for whom they are 
 designed, are apt to have no stability ; and either not to 
 work at all, or to work otherwise than was intended. But 
 this is in some measure the case with ordinary legislation 
 under similar conditions : and I conceive that the proper 
 inference to be drawn from it is that which I have drawn 
 in Chap. I. : viz. that before practical conclusions are drawn 
 from any general theoretical discussion of these topics, the 
 results of such discussion should be carefully combined with 
 the results of a more special study of the political conditions 
 and history of the state in question.
 
 CHAPTEE XX 
 
 THE LEGISLATURE 
 
 1. IN the preceding chapter we have been led to adopt 
 a threefold division of the functions of government, as (1) 
 Legislative, (2) Executive, and (3) Judicial ; extending the 
 notion of legislation to include the imposition of taxes, and, 
 accordingly, combining with it a supervision over public 
 receipts and expenditure. A general consideration of these 
 three classes of functions has shown us reasons why they 
 should be, in modern states generally, performed for the 
 most part by different organs : at the same time we have 
 seen that this separation of functions cannot conveniently 
 be made complete. 
 
 Both these conclusions will receive further support from 
 the study of the construction adapted to each organ, to which 
 we are now to proceed. I begin with the legislative organ, 
 because we have already seen that, from the nature of its 
 functions, the legislature must be in a certain way supreme 
 over the other two organs, since it belongs to the legislature 
 to lay down the general rules, which the judiciary has to 
 apply, and in conformity to which the executive has to 
 work ; while again, so far as it regulates public finance, the 
 legislature must exercise a general control over all the 
 operations of government that involve expenditure. It 
 has seemed indeed desirable and almost necessary, if the 
 separation of functions is to be effectually carried out 
 that the executive and judicial organs should have a sub- 
 stantial amount of independence within their respective 
 
 367
 
 368 ELEMENTS OF POLITICS CHAP. 
 
 spheres of action ; and I shall hereafter consider the con- 
 stitutional rules or other measures by which the required 
 independence may be secured. Meanwhile, I shall assume 
 that there is in any case a qualified supremacy in the legis- 
 lature, from the nature of its functions ; and that it will 
 consequently be expedient to entrust the legislative organ 
 with the function of critically supervising the action of the 
 executive. 
 
 Let us begin, then, by considering the construction of 
 the legislature. 
 
 If we ask without reference to existing institutions 
 and the habits of thought which they tend to generate 
 to whom should be entrusted the function of making or 
 modifying laws, an obvious answer is that it should be 
 entrusted to persons who are thoroughly acquainted with 
 the laws that they are called upon to modify. As J. S. 
 Mill justly says, " there is hardly any kind of intellectual 
 work which so much needs to be done not only by ex- 
 perienced and exercised minds, but by minds trained to the 
 task through long and laborious study, as the business of 
 making laws : since every provision of a law requires to be 
 framed with the most accurate and long-sighted perception 
 of its effect on all the other provisions : and the law when 
 made should be capable of fitting into a consistent whole 
 with the previously existing laws." l Accordingly, we may 
 
 1 Representative Government, chap. v. Mill goes on to say that "it is 
 impossible that these conditions should be in any degree fulfilled when 
 laws are voted clause by clause in a miscellaneous assembly. The incon- 
 gruity of such a mode of legislating would strike all minds, were it not 
 that our laws are already, as to form and construction, such a chaos, that 
 the confusion and contradiction seem incapable of being made greater by 
 any addition to the mass." 
 
 His plan for remedying the defects of the existing system of Parliamentary 
 Legislation is to create " a small body, not exceeding in number the members 
 of a Cabinet, who should act as a Commission of Legislation, having for its 
 appointed office to make the laws .... No one would wish that this body 
 should of itself have any power of enacting laws : the Commission would 
 only embody the element of intelligence in their construction ; Parliament 
 would represent that of will. . . . Instructions concurred in by both Houses, 
 to draw up a Bill which should effect a particular purpose, would be im- 
 perative on the Commissioners. . . . Once framed, however, Parliament
 
 xx THE LEGISLATURE 369 
 
 lay down without hesitation that men who have that 
 thorough knowledge of law which we can, generally speaking, 
 only expect to find in able and experienced members of the 
 legal profession, should have a large and responsible share 
 in law-making. Proposed laws should be drawn up by 
 lawyers, and any changes made in the draft should be 
 carefully revised by lawyers before they are finally enacted 
 by the Legislature. But, for several reasons, it does not 
 seern desirable to entrust the substantial work of legislation 
 entirely or even mainly to them alone. 
 
 Firstly, the deductive operation of applying complicated 
 general rules accurately and faithfully to particular cases is 
 very different from the inductive operation of collecting, 
 comparing, estimating, the good and bad consequences of 
 actual laws, and considering the consequences of proposed 
 or possible measures. In either case, a knowledge of law, 
 as it is, is required : but the use made of the knowledge, 
 the habit of mind that it generates, the special points need- 
 ful to be observed, the special difficulties that have to be 
 faced and overcome, are obviously different in the two cases. 
 Persons, therefore, may be highly skilled by nature and 
 
 should have no power to alter the measure, but only to pass or reject it ; or, 
 if partially disapproved of, remit it to the Commission for reconsideration." 
 
 The plan, I think, has much to recommend it ; but the alteration of pro- 
 cedure proposed in the sentence that I have italicised appears to me certainly too 
 drastic, and likely to involve a dangerous division of legislative responsibility. 
 But, assuming the powers of Parliament to remain unaltered, I think much 
 might be gained by the appointment of a body of legal experts, having the 
 function of pointing out inconsistencies or ambiguities or other formal de- 
 fects in new statutes before they were finally enacted ; and also of drawing 
 attention to any probable legal consequences of the new provisions that may 
 appear to be not designed, or imperfectly conceived, by the enacting body. 
 I think that the suggestions of such a commission would be largely accepted 
 by the legislature ; and considerable formal improvement in current legis- 
 lation might be hoped to result. 
 
 The need of such improvement in English legislation appears to remain 
 as urgent as it was when Mill's book was published, if I may judge from 
 the repeated utterances of experts. While I write (26th March 1896) the 
 Times brings a report of a speech of the Lord Chief Justice of England, 
 which contains the following sentence: "It was a lamentable fact that a 
 large part of the time of the judges was spent in trying to make sense of Acts 
 of Parliament." 
 
 2B
 
 370 ELEMENTS OF POLITICS CHAP. 
 
 practice for the application of law, which is the habitual 
 intellectual work of the judge and of the advocate who has 
 to convince him, without being qualified for the modification 
 of law which is the proper work of the legislator. Again, 
 in the judicial administration of law, it is most needful 
 that the judge should have a scrupulous respect for the law 
 that has actually been laid down : that he should resist not 
 only the coarser temptation of warping it under the in- 
 fluence of bribery, intimidation, party feeling, or personal 
 affection, but also the subtler temptation to twist it in the 
 direction of equity and utility ; * since, as each judge would 
 be likely to twist it somewhat differently, the certainty of 
 law, which is more important than any increase of equity 
 that could be obtained in this way, would be lost : more- 
 over, if this well-meant warping of rules were allowed, it 
 would be indefinitely more difficult to resist the influence 
 of sinister interests. But this scrupulous reverence for 
 existing law, though a needful habit of mind, is likely to 
 prevent the heads of the legal profession from being un- 
 biassed judges of proposed improvements in law ; especially 
 as such improvements are likely to render a certain amount 
 of their painfully gained knowledge and elaborately con- 
 trived methods useless, and to impose on them the necessity 
 of learning new rules and new methods. We need not 
 suppose this last consideration consciously to operate as a 
 motive, it is sufficient if it gives an unconscious bias. 
 
 Hence, however desirable it may be to give to leading 
 lawyers a large and responsible share in the work of con- 
 structing laws, they are commonly more qualified to be 
 builders than architects in this work. 2 The ideal legislator 
 
 1 When an established rule of law is found to be ambiguous or indefinite, 
 considerations of equity or utility may reasonably influence a judge in apply- 
 ing it ; but not so far as it is clear, even if it clearly needs change. 
 
 2 It may be added that, as in modern states the branches of law in which 
 ordinary legal practice lies, have reached, for the most part, a tolerably 
 stable condition, the bulk of new legislation relates to matters which come 
 but little in the way of an ordinary practitioner. The advantage of his 
 special training comes more often through the habit it gives of exactly 
 estimating the force of expressions ; i.e. it bears on the form more than on 
 the matter of legislation.
 
 xx THE LEGISLATURE 371 
 
 ought to know law as well as the lawyer, but he ought to 
 know much more than law. He must have an insight, as 
 I have said, into the actual relation of the laws to the 
 social life of the community regulated ; the manner in 
 which they modify the conduct of the individuals whom 
 they affect ; the consequences, proximate and remote, that 
 are likely to result from any change in them. To obtain 
 this insight he ought to have such an acquaintance with 
 particular facts as it is difficult to obtain otherwise than 
 from actual experience, or at least intimate converse with 
 men of experience : and he ought also to possess such 
 knowledge as is obtainable of the general tendencies of 
 social development and the effects of different social causes. 
 Taking men as they are, we shall hardly expect to find many 
 whose knowledge qualifies them for dealing in a statesman- 
 like manner with all the problems presented to a modern 
 legislative body : if so, it becomes important in constructing 
 our legislative organ to aim at including an adequate selec- 
 tion of persons who, with general ability, combine special 
 experience in different departments of social life. This, 
 then, is one argument for the representative system, as now 
 applied in most countries that share "West European civil- 
 isation ; that the periodical election of legislators by differ- 
 ent divisions, sufficiently numerous, of the community, 
 tends to give us, if not ideal statesmen, at any rate a body 
 of men who possess in the aggregate the special empirical 
 knowledge that is most indispensable. 
 
 But this is not the sole argument for making an 
 assembly thus chosen a main part of the legislative organ : 
 nor is it generally thought to be the most important argu- 
 ment. It seems even more needful to secure in legislators 
 a keen concern for the interests of the various elements of 
 the community for which they legislate : and this seems 
 likely to be attained by the system of popular election for 
 a limited time, more effectually than by any other mode of 
 appointing a legislative council or assembly. For, provided 
 that the post of legislator is made adequately desirable, 
 either by the remuneration or the power and social dignity
 
 372 ELEMENTS OF POLITICS CHAP. 
 
 attached to it, the desire of re-election will make it the 
 interest of the legislator to promote at least the recognised 
 interests of his constituents. 
 
 Here I may point out the fundamental affinity between 
 the main principle of the civil code, as constructed on the 
 basis of individualism, and the principle of governmental 
 construction just laid down. We have before seen that 
 legislation (and other governmental interference), in modern 
 civilised societies, is mainly based on the principle that the 
 interests of the sane adult members of the community will 
 be best promoted if they are left to provide for themselves ; 
 owing to the combination of better knowledge with greater 
 concern for their own interest, which may on the average 
 be attributed to them. It is for a similar reason that, so 
 far as legislative interference is required, an assembly chosen 
 for a limited time by the people at large is held likely to 
 know what the people at large want, better than any council 
 or assembly otherwise appointed, and to be more concerned 
 to provide it. 
 
 What has just been said of laws applies with especial 
 force to the rules under which taxation is levied. Such 
 compulsory taking of private property for public purposes 
 is a part of governmental interference which governments 
 not adequately controlled are specially tempted to overdo : 
 and it is a procedure of which the excess is specially for- 
 midable to the governed. As we have seen, the liability 
 to be deprived of an unknown portion of one's wealth by 
 the tax-gatherer is an insecurity against which it is impos- 
 sible to give complete constitutional protection to the 
 individuals governed ; but the insecurity is importantly 
 reduced if the body that regulates taxation is periodically 
 elected by the community at large and is thus effectively 
 responsible to them. 
 
 But there is another argument of weight for appointing 
 
 legislators by popular election which, again, resembles a 
 
 reason previously noted for strictly limiting the " paternal " 
 
 interference of government l viz. that even if such election 
 
 1 Cf. ante, p. 132.
 
 THE LEGISLATURE 373 
 
 does not lead to a more wisely constructed system of laws 
 than any other mode of appointment, it tends to render the 
 legislation more acceptable to the governed ; and therefore 
 less likely to be evaded, or, if obeyed, tp cause friction and 
 discontent. Just as an individual is more likely to con- 
 form to the rules of a physician whom he has chosen than 
 of one chosen for him, so a people will be less liable to be 
 recalcitrant against laws made by a popularly elected body. 
 Indeed the historic and current name for such a body a 
 House or Chamber of " Eepresentatives " suggests that 
 laws made by it will be commonly felt to have been practi- 
 cally made by the people " represented," and so to have 
 popular weight behind them. 
 
 The argument just mentioned, however, might be used 
 to support a different conclusion : it might be urged that if 
 our aim is to have laws made as completely as possible in 
 accordance with the wishes of the majority of those who 
 have to obey them, there is no need of the intervention of 
 representatives : it will be simpler and better to give the 
 decision on legislative proposals to the people themselves. 
 And, in fact, there seem to be strong reasons which I 
 shall discuss in a subsequent chapter l for adopting this 
 plan to a limited extent under certain conditions : but 
 there is a decisive objection against giving the main work 
 of legislation to the citizens at large : viz. that they lack 
 the requisite knowledge and trained faculties. Legislation 
 is a difficult art, the mastery of which requires such an 
 expenditure of time and energy as the citizens at large 
 even if otherwise qualified cannot ordinarily afford. It 
 may be said that this deficiency must equally prevent them 
 from choosing competent legislators; since if one does not 
 know whether a law is good or bad, one cannot tell whether 
 the law-maker is competent or incompetent. I shall here- 
 after consider the exact force of this objection to the repre- 
 sentative system, and the best way of minimising it : for 
 our present purpose it seems sufficient to reply that, in the 
 division of labour which civilisation has brought, ordinary 
 1 Chap. XXVII.
 
 374 ELEMENTS OF POLITICS CHAP. 
 
 members of a community organised on an individualistic 
 basis have continually to choose experts for skilled work of 
 which the chooser does not understand the methods : and 
 the result is commonly accepted as tolerably satisfactory. 
 Thus to revert to a comparison already made most men 
 value highly the control that they acquire, by the free 
 choice of their physician, over the operation of applying 
 drugs to the cure of their diseases; though they know 
 themselves to be wholly unable to prescribe medicines for 
 themselves. We cannot exactly imitate this in the case of 
 government, owing to the necessity of giving Government 
 coercive power over all persons living within the territory 
 governed ; but we imitate it as far as we can by giving the 
 individuals coerced a share in the appointment of the 
 supreme organ of legislation. 
 
 2. The reasons above given for constituting a repre- 
 sentative assembly as the whole or chief part of the organ 
 of legislation are those that have usually been most promi- 
 nently put forward by its advocates. But some writers l of 
 repute appear to attach still more importance to what I 
 may call the educative effect of representative or popular 
 government. The alleged educative advantages are partly 
 intellectual the training given by participation in the 
 management of public affairs ; partly moral the " invigorat- 
 ing effect of freedom on the character," in developing 
 patriotism and public spirit, self-reliance and energetic self- 
 help. As regards the first kind of advantage, this argument, 
 if valid at all, seems to make more strongly for the direct 
 participation of the people in legislation than for representa- 
 tive government ; since the mere choice of a legislator is not 
 likely to exercise and train the intellect so effectively as the 
 effort to estimate the grounds for and against any proposed 
 law. Still, in proportion as choice implies supervision and 
 criticism of the legislator's work, the argument may be used 
 in favour of either form of popular government. But in 
 neither case does it seem to be a strong reason for giving 
 legislative functions either directly or indirectly to 
 
 1 e.g. J. S. Mill, Representative Government, chap. iii.
 
 xx THE LEGISLATURE 375 
 
 persons whose minds are as yet incompetent to perform the 
 intellectual processes required for coming to rational con- 
 clusions on the questions with which a modern legislature 
 has to deal. There are, I fear, but slender grounds for 
 thinking that such persons will receive valuable intellectual 
 training through mere experience of the effects of their 
 decisions ; since it requires a certain grasp of the right 
 method of dealing with any class of problems to be able to 
 derive instruction from one's mistakes : and the political 
 blunderer can generally, without manifest absurdity, attribute 
 the bad consequences of his blunders to circumstances in- 
 capable of being foreseen, or to the perversity and stupidity 
 of other men. 1 
 
 The consideration of the moral advantages of " free " 
 government requires us again to note the confusion which 
 the common use of the word " Freedom " is apt to cause. 2 
 When a writer speaks of " Free " institutions he sometimes 
 means to imply that the government leaves the individual 
 alone to look after his own affairs ; sometimes that the 
 private members of the community collectively exercise an 
 effective control over the government : sometimes he seems 
 to imply both together, apparently assuming a necessary 
 connection between the two facts, which we may conveniently 
 distinguish as " civil " and " constitutional " freedom re- 
 spectively. But there is no certainty that a representative 
 legislature, chosen by universal suffrage, will not interfere 
 with the free action of individuals more than an absolute 
 monarch would : the essential difference is merely, that 
 under absolute monarchy a majority of sane adults may be 
 forced to submit to laws that they permanently dislike, 
 
 1 It would be satisfactory to feel confident, with Story (Constitution of the 
 United States, Book III. chap. ix. 575), that the representative system, by 
 awakening " a desire to examine and sift and debate all public proceedings," 
 must tend to "gradually furnish the mind" of the mass of the electorate 
 "with safe and solid materials for judgment upon all public affairs" ; but I 
 know no adequate grounds for this optimistic conclusion. As I shall here- 
 after argue (XXV. 1) the educative effect of popular control over government 
 appears to depend largely on the adequate development of local organs of 
 government. 
 
 2 Cf. ante, Chap. IV. 1.
 
 376 ELEMENTS OF POLITICS CHAP. 
 
 whereas if a popularly elected assembly is supreme in legisla- 
 tion, this coercion can only be applied to a minority. To 
 this extent constitutional freedom affords a security for civil 
 freedom ; but a priori reasoning and experience combine to 
 show that there is no further necessary connection between 
 the two. For instance, I understand that Government does 
 nothing to prevent a man from getting as drunk as he likes 
 in Kussia : whereas the vigorous democracy of North America 
 has established in several States severely restrictive liquor- 
 laws. 1 
 
 Distinguishing, then, between constitutional and civil 
 freedom, I think we may fairly infer, from our general 
 knowledge of human nature, that the possession of the 
 former will tend to develop patriotism and public spirit. 
 Men who have a share in the control of public business are 
 more likely to feel that it is their own business, and to 
 exert themselves, and make sacrifices when required, to 
 promote the welfare of the State. But there is no similar 
 reason why constitutional freedom should make individuals 
 more self-reliant and self-helpful in the management of 
 their private affairs : it would be paradoxical to maintain 
 that the proper method of rousing persons to energetic effort 
 in the promotion of their private interests is to require them 
 to attend to public interests, and to hold out to them the 
 hope of persuading or compelling Government to improve 
 their circumstances. Perhaps we may say that while active, 
 self-helpful, self-reliant peoples are most likely to have some 
 system of popular control over their government in effective 
 working, it is rather true, that a people of this character 
 will want such a control and will agitate till they get it, 
 than that^the exercise of the franchise will tend to give 
 
 1 I may observe that the confusion of thought which hangs about the 
 notion "freedom" becomes still worse confounded in the case of the term 
 "liberal," by blending with the notion of "liberality" in the sense in which 
 it is opposed to "meanness " : so that the term "liberal " comes to be applied 
 not only to measures which secure to individuals civil freedom, or extend 
 popular control over government, but also to measures which spend public 
 money without stint. Both these confusions are effectively exposed in Mr. 
 Bruce Smith's Liberty and Liberalism (1887).
 
 xx THE LEGISLATURE 377 
 
 them these qualities. In any case, when a nation of this 
 kind has once obtained the influence over legislation, which 
 is given by the establishment of a representative legislature, 
 it is likely to be very difficult to bring it into a condition 
 of permanent general contentment with any legislature that 
 has no popular element : at least until it has had pro- 
 longed and bitter experience of the disasters arising from 
 popular government. What we have practically to consider 
 in laying down principles of governmental construction for 
 such a nation is not whether it is to have a representative 
 assembly as a main part of the legislative organ, but in 
 what way the deficiencies of such an assembly may best be 
 remedied or minimised. 
 
 To sum up, I accept the general practical conclusion 
 widely regarded as the most fundamental principle of 
 modern constitutions that the persons who compose the 
 legislative organ should be appointed, wholly or to a great 
 extent, by popular election. But I do not accept it on the 
 ground of any supposed " natural right " of each individual 
 to refuse submission to laws to which he has not " consented 
 personally or through his representatives " ; but for reasons 
 analogous to, though not identical with, those which led us 
 to the adoption of Individualism as the main principle for 
 determining the proper functions of government. I there- 
 fore accept it not as an absolute principle of constitutional 
 equity, but merely as a rule based on generalisations with 
 regard to human nature which I do not maintain to be 
 universally true, and the force of which may be outweighed 
 by other considerations. It still remains open to argument 
 whether the whole, or an important part, of a given com- 
 munity is not in such an intellectual and moral condition 
 that its interests will be better promoted by a legislature 
 over which it has no control than by one which it is allowed 
 to elect. All that can be fairly contended on the general 
 grounds here taken is that the burden of proof should be 
 distinctly laid on those who wish to withhold the security 
 for suitable legislation that such control affords. 
 
 Further, if in accordance with usage we speak of the
 
 378 ELEMENTS OF POLITICS CHAP. 
 
 principle thus defined as that of "Representative" 1 Govern- 
 ment, it should be borne in mind that we do not adopt the 
 method of popular election, in the view that the elected 
 legislators will or ought to vote as on any particular question 
 the persons electing them would vote ; but in the view that 
 the persons so chosen will be more likely to promote the 
 real interests of the community which are the interests 
 of an aggregate of individuals, now existing or to exist 
 hereafter than persons otherwise appointed. 
 
 Taking this view, let us try to determine in accordance 
 with the principle thus denned the chief questions that 
 arise when we attempt to work out in detail this mode of 
 appointing legislators. 
 
 3. The first question is, who is to choose ? Is the 
 electorate to be coextensive with the adult portion of the 
 community, or, if not, what classes are to be excluded, and 
 on what grounds ? 
 
 It is obvious that the general arguments for a repre- 
 sentative legislature lead prima facie to the inclusion of all 
 sane adults : if any class is deprived of representation, the 
 advantages aimed at in the institution are lost so far as 
 this class is concerned. Indeed, there may be even more 
 danger that the special needs of such a class will be neglected 
 and its special interests sacrificed, by a legislature represent- 
 ing other classes exclusively, than there would be under a 
 despotism ; since a despot has less motive than an assembly 
 representing only a portion of the community for dividing 
 unequally any natural concern that he may feel for the 
 interests of those whom he governs. This is the fundamental 
 objection to any attempt to improve the quality of a representa- 
 tive legislature by restricting what is called the " suffrage," 
 " franchise," or " active " electoral privilege i.e. the right of 
 voting, as distinct from the right of being voted for. A further 
 objection lies in the sense of injustice that such an excluded 
 class is likely to feel in consequence of its unequal treatment. 
 
 1 In some respects the term "Responsible Government" would be more 
 appropriate ; except that it does not clearly indicate to whom the government 
 so designated is to be responsible.
 
 xx THE LEGISLATURE 379 
 
 Still these objections are not decisive, from a utilitarian 
 point of view : in particular they may be repelled or out- 
 weighed by special proof, either (1) that the class in question 
 will not suffer by exclusion because its interests will be 
 adequately cared for by the representatives of those included, 1 
 or (2) that it is likely to make a dangerously bad use of the 
 vote. The first of these arguments may be fairly used in 
 support of exclusion on the score of youth and inexperience : 
 since the natural concern of fathers for sons will suffice to 
 prevent any material danger that the class thus excluded 
 will suffer through a sacrifice of their interests to the inter- 
 ests of other men. A similar argument has some force in the 
 case of women, owing to the intimate relations of affection 
 that bind them to men : it may be plausibly urged that the 
 political interests of wives, daughters, and sisters are safe in 
 the hands of husbands, fathers, and brothers. The argument, 
 however, is obviously least applicable to the considerable 
 minority of adult women spinsters and widows who are 
 thrown on their own resources for a livelihood : 2 and it 
 is not supported, even in the case of wives, by the practice 
 of the wealthier classes in framing marriage-settlements, 
 since elaborate care is usually taken to protect the pecuniary 
 interests of the wife against the misconduct of her husband. 
 I do not know any other numerically important class of 
 sane self-supporting adults in whose case the argument 
 so far as it is used to justify permanent exclusion is even 
 plausible in a modern state. 
 
 The second argument that the excluded class will make 
 a dangerously bad use of the vote is therefore the more 
 important ; and it seems worth while to examine in detail 
 
 1 It is to be observed that this argument only neutralises a part of the 
 grounds for universalising the suffrage ; it does not affect the " educational " 
 grounds. 
 
 2 It is sometimes urged that women who are thrown on their own resources 
 do not form a distinct economic and social class, like landlords or artisans ; 
 so that their interests may be adequately represented by men of the same 
 class. But we cannot assume either (1) that women are not more fit for some 
 lucrative occupations than for others, supposing all to be equally open to 
 them, or (2) that they are not in danger of being excluded from some lucrative 
 occupations, in the interests of men.
 
 380 ELEMENTS OF POLITICS CHAP. 
 
 the different species of such misuse that are chiefly 
 dangerous. 
 
 Firstly, this bad use may be (a) morally perverted, or (&) 
 merely intellectually mistaken. Of the former misuse the 
 three chief kinds are caused respectively by intimidation, 1 
 bribery, and immoral demagogy. The patriotic voter will 
 obviously vote for the candidate whom he regards as most 
 competent to promote the wellbeing of the community by 
 legislation ; but it is in accordance with the general prin- 
 ciple on which representative government is based, that in 
 estimating the candidate's competence he should have 
 particular regard for the special political interests of the 
 section of the community to which he belongs, and aim 
 especially at securing an intelligent concern for these : 
 though he ought, of course, not to desire that these special 
 interests should be promoted at the expense of justice and 
 the common good. Now, if the elector is in such a position 
 that a candidate or his friends may seriously injure him 
 without open illegality, and without material sacrifice to 
 themselves, there is an obvious danger that his private 
 interest may be artificially weighted, e.g. by fear of dis- 
 missal, loss of custom, exclusion from employment, etc. so 
 as to induce him to vote for a candidate whom he does not 
 really trust as a protector of his political interests. In this 
 case the vote is perverted by intimidation. 2 
 
 Again, if the elector is poor, his concern for his political 
 interests may be similarly outweighed by a bribe which the 
 candidate or his friends may afford without material sacri- 
 fice. This, of course, is all the more probable in proportion 
 as the elector is unenlightened as to his real political 
 
 1 By "intimidation" is here specially meant the threatening of conduct 
 that would be in itself legal, apart from its aim of influencing the vote of 
 the person threatened. See Chap. IV. 4, pp. 59, 60. 
 
 2 The effects of intimidation by rich and powerful individuals must be 
 distinguished from the effects of what Bagehot has called the "habitual 
 deference " which sometimes leads persons of humble social position to 
 vote in accordance with the judgment of those above them in station : since 
 this sincere deference to the opinion of the rich and powerful, though it may 
 be mistaken, is not demoralising.
 
 xx THE LEGISLATURE 381 
 
 interests : still, it cannot be said that the danger of bribery 
 proceeds entirely from want of enlightenment ; since it 
 may easily be that the probable difference, as affecting his 
 private interests, between the kinds of legislation offered by 
 competing political parties ought reasonably to be valued at 
 less than the sum of money which the candidate is willing to 
 offer. But the object of giving him a vote is not simply to 
 secure his private interests, but to secure the presence in the 
 legislative organ of the varied knowledge and intelligent 
 concern for all sections of the community that is necessary 
 for good legislation : and this aim is defeated so far as the 
 elector yields to bribery. 
 
 It is, however, a still worse form of bribery if the 
 candidate tempts the elector with promises to further his 
 political interests by legislation which both know to be 
 contrary to the general good : since against the candidate 
 who merely bribes pecuniarily we have only a certain general 
 presumption that he is not likely to be a good legislator, but 
 a candidate who bribes by promising mischievous measures 
 has definitely pledged himself to be a bad one. This third 
 perversion of the vote I call immoral demagogy. 
 
 It is to be observed, however, that even where the 
 demagogue is dishonest, the elector may be honest but 
 mistaken : he may believe that the legislation promised him 
 is just and conducive to the common good, and may vote 
 legitimately according to his lights. Or, again, the dema- 
 gogue who is promising to further the sinister interests of a 
 class may himself be honest but mistaken : he may be a 
 charlatan who genuinely believes himself to be a statesman. 
 The danger that under a widely-extended suffrage the ulti- 
 mate interest of the community may be sacrificed to the 
 real or merely apparent interests of the numerical majority 
 may occur through any of these modes of demagogy ; and 
 in a community not radically demoralised the danger from 
 the two latter modes is likely to be greater than from 
 immoral demagogy recognised as such. 
 
 Now intimidation when the conduct feared is of a 
 kind that cannot be treated as illegitimate apart from
 
 382 ELEMENTS OF POLITICS CHAP. 
 
 evidence of its motive is very difficult to put down by 
 legal penalties, as the fear may easily be produced without 
 express threats. It may, however, be partly prevented by 
 the secrecy of the ballot ; and the importance of prevent- 
 ing it is, in my opinion, a decisive argument for secret 
 voting in spite of the strong objections that may be urged 
 against it. 1 Still, even this prevention cannot be made 
 complete, since in many cases the way in which an elector 
 has voted may be inferred, with a high degree of probability, 
 from his own words and actions or those of others ; and if 
 there is a strong probability that a particular class will 
 vote in a particular way, such a class, when in a small 
 minority, are liable to incur private risks by merely ventur- 
 ing to go to the ballot-box. Bribery, again, may more 
 easily than intimidation be partly put down by penalties : 
 but the difficulty of legally preventing an exchange into 
 which both parties are desirous to enter is shown by ex- 
 perience to be very great in private transactions, and it is 
 therefore likely that the purchase of votes will always go 
 on to some extent, at least until a considerable improve- 
 ment has taken place in public morality. Nor is it 
 probable that any efforts to disseminate truth and sound 
 reasoning are likely to put down demagogy altogether. 
 Hence it must be recognised as possible that on these 
 grounds the disadvantages of giving the suffrage to poor, 
 dependent, and ignorant persons may outweigh the dis- 
 advantages of excluding them. Whether this is likely 
 to be the case at any particular time and place it does not 
 belong to general theory to decide. The decision will 
 partly depend on a consideration which I have not yet 
 taken into account the intensity of the desire to exercise 
 the franchise felt by the excluded class. For where this 
 desire is weak, not only is the risk from exclusion less, 
 since this cannot cause much discontent ; but the risk 
 from inclusion is greater, since persons who have no genuine 
 consciousness of political interests needing defence lack the 
 normal motives to legitimate voting, and are therefore more 
 1 See, for instance, Mill, Representative Government, chap. x.
 
 XX THE LEGISLATURE 383 
 
 in danger of perversion. If their political interests are not 
 actually suffering from their exclusion, the most pressing 
 reason for giving them a vote vanishes : if their interests 
 are suffering, and it is only the consciousness of their need 
 that is wanting, it is a case for agitation rather than 
 immediate enfranchisement. 
 
 4. On the whole it would seem that the permanent 
 exclusion of any class of sane self-supporting adults, on 
 account of poverty alone, from the share of the control over 
 legislation which the representative system aims at giving 
 to the citizens at large, is not easily defensible in face of 
 a strong and steady demand for their admission. It is less 
 difficult to maintain such an exclusion in the case of avoid- 
 able ignorance of an extreme kind : i.e. to refuse the suffrage 
 to persons who have not attained a certain educational 
 standard, provided that facilities for education are within 
 the reach of all classes. Various other exclusions are 
 permanently defensible on different grounds. Thus it 
 seems reasonable to withhold the suffrage partly as a 
 deterrent, partly as a security against its perversion from 
 persons who have committed grave offences of any kind ; 
 also from all who have been convicted of buying or selling 
 votes, or intimidating electors. In some cases, disgraceful 
 conduct not amounting to crime seems a sufficient ground 
 for exclusion e.g. the keeping of a brothel, where this is 
 tolerated. It also seems reasonable to disfranchise tempor- 
 arily persons who without crime have so far failed to maintain 
 their economic independence as to receive support as paupers 
 from public funds ; l on the ground that their use of the 
 vote as a protection of their political interests is specially 
 unlikely to be advantageous to the public. Other tem- 
 porary exclusions appear to be desirable for reasons that 
 involve no sort of discredit. Thus, as we have seen, the 
 ordinary objections to electoral restrictions do not apply in 
 
 1 As before said, I should include, along with paupers, bankrupts who 
 have not paid their creditors in full ; since they have equally failed to main- 
 tain their economic independence, and disfranchisement, as a permanent 
 mark of this failure, is useful as a deterrent from reckless borrowing, while 
 it does not impair the bankrupt's industrial efficiency.
 
 384 ELEMENTS OF POLITICS CHAP. 
 
 the case of exclusion on the ground of youth and inex- 
 perience ; and it seems reasonable to impose, as a condition 
 of the suffrage, an inferior limit of age somewhat higher 
 than that of ordinary legal maturity ; so that a man may 
 not have a share in the control of public affairs until after 
 some years of the experience gained by the independent 
 management of his own affairs. Again, when we examine 
 the possibilities of bringing the motive of private interest 
 into illicit operation in political elections, we are led to 
 distinguish a special class of persons in whose case this 
 operation cannot effectually be excluded, except by a partial 
 withdrawal of the right of voting. I mean persons em- 
 ployed by candidates or their friends for the work of an 
 election : it is difficult to prevent the remuneration for 
 such employment from practically operating like a bribe, 
 if the employees are allowed to vote in the same election. 
 A similar danger exists in some measure in the case of 
 permanent employment, private or governmental : but not 
 such as to justify a sweeping disfranchisement of employees, 
 provided that the independence of the latter is tolerably 
 secured by the protection of the ballot or otherwise. There 
 is, however, a special ground for excluding from the exercise 
 of the suffrage such employees of government as are charged 
 with the function of physical coercion policemen or 
 soldiers on service on the score of the peculiar importance 
 of keeping them impartial in political conflicts. 1 
 
 Questions of wider importance are raised by exclusions 
 on the ground of sex or race. I see no adequate reason for 
 
 1 If the community is divided locally for electoral purposes, the with- 
 drawal of the vote from soldiers is further desirable, in order to prevent the 
 disturbance of this plan of division and the possible manipulation of the 
 army for electoral purposes which would be liable to result from giving 
 soldiers votes in the districts in which they were quartered. 
 
 It is to be observed that the withdrawal of the exercise of the suffrage 
 from soldiers on service is less likely to be felt as a grievance, as any portion 
 of the army that is abroad must be practically excluded from voting. 
 
 It may be added that soldiers on service are expressly excluded from the 
 exercise of the franchise in France, Germany, and Italy. In England a 
 result in the main similar is caused by the fact that the residence of a 
 private soldier in a barrack is insufficient to give him a vote as a lodger.
 
 xx THE LEGISLATURE 385 
 
 refusing the franchise to any sane self-supporting adult 
 otherwise eligible, on the score of her sex alone ; and there 
 is a danger of material injustice resulting from such refusal, 
 so long as the State leaves unmarried women and widows 
 to struggle for a livelihood in the general industrial com- 
 petition, without any special privileges or protection. The 
 most important consideration on the other side is the in- 
 feriority of women in physical force and their unfitness for 
 warfare. This may be used as an argument in two ways : 
 it may be considered (1) that the franchise belongs as a 
 right to those who will defend their country when attacked ; 
 or (2) that there is danger in allotting the franchise so 
 that the preponderance of electoral power may diverge 
 markedly from the preponderance of physical force, since 
 this divergence may tempt a minority defeated at the polls 
 to refuse obedience to the legislature. The two arguments 
 are fundamentally distinct, as the first appeals to principles 
 of Eight, the second forecasts an appeal to Might. Accord- 
 ingly the second argument will be more appropriately 
 considered later, when I come to treat of the sanctions of 
 political order. 1 Here I will only remark that admitting 
 the danger it signalises the principle of governmental con- 
 struction to which it points would, if thoroughly carried 
 out, lead to very novel and startling results : since the 
 manifest superiority of trained soldiers in physical conflict 
 would have to be admitted as constituting a claim for 
 electoral power out of proportion to their numbers ; whereas 
 the contrary is the case in the leading West-European States, 
 where soldiers on service are actually excluded from the 
 exercise of the franchise. 
 
 The first argument, which claims the franchise for men 
 exclusively, as a compensation for onerous public duties 
 imposed solely on the male sex, requires different treat- 
 ment. It seems, however, to have obviously little force 
 in an orderly modern state in which military service is 
 ordinarily voluntary ; since, in such a community, men who 
 are not soldiers or policemen are so rarely called upon 
 
 1 See Chap. XXXI. 7, 8. 
 
 2C
 
 386 ELEMENTS OF POLITICS CHAP. 
 
 to exercise physical force, that the indefinite duty of 
 fighting if required can surely weigh little as compared 
 with the duty of paying taxes, which is laid on both sexes 
 alike. The case no doubt is somewhat different in a state 
 in which the dangers of war are so pressing as to necessitate 
 compulsory military service : here no doubt there is a sub- 
 stantial burden imposed on the male sex from which women 
 are free. But I know no principle on which it could be 
 argued with any show of reason that a monopoly of the 
 franchise is the proper compensation for this peculiar 
 masculine burden ; since no one would gravely urge the 
 danger that women, not having to fight, may support by 
 their votes a war to which the majority of men are adverse. 
 Apart from this chimerical danger, the kind of compensation 
 which the masculine burden of military service seems prima 
 facie to demand is rather something which would balance 
 the economic disadvantage at which this burden might 
 be supposed to place men in industrial competition with 
 women. But when the question is regarded from this 
 point of view it becomes evident that the superior physical 
 force possessed on the average by men which is the reason 
 why military service is imposed on them constitutes a 
 natural advantage in industrial competition, in comparison 
 with which the burden that we are now considering seems 
 insignificant. 
 
 So far we have been considering the case of women who 
 are not economically protected by marriage. The argu- 
 ments for extending the franchise to wives appear to me 
 less strong, and the objections more serious. I admit a 
 certain general presumption that any legislation in which 
 the two sexes are treated differently will, so far as controlled 
 by an electorate in which men largely preponderate, tend 
 to postpone the interests of women unduly ; and will be 
 especially liable to be unfair to wives as such, if they are 
 excluded from the franchise. On the other hand, if a 
 husband is not abnormally wanting in domestic affection 
 and the sense of domestic duty, the interests of ( his wife, at 
 any rate in her relations to persons outside the family, are
 
 THE LEGISLATURE 387 
 
 tolerably safe in his hands : while, if he is so wanting, he 
 is likely to have little scruple in exercising on her a kind 
 of intimidation which law is powerless to prevent. And 
 even apart from intimidation, a wife's vote is likely to be 
 biassed by the desire of domestic harmony, prompting her 
 to avoid open political disagreement with her husband. 
 Moreover, according to the necessary or customary division 
 of labour between husbands and wives, the experience of 
 the latter will, generally speaking, be of less value as a 
 preparation for the wise exercise of the franchise : while at 
 the same time this division of labour leads to a reduction in 
 the number of men exercising the franchise through the 
 formal or practical exclusion of soldiers, sailors, etc. which 
 must tend to throw an inexpedient preponderance of electoral 
 control into the hands of women, if wives generally are 
 admitted to vote. 1 
 
 Exclusion on the ground of race alone may be expedient 
 if the general intellectual or moral inferiority of the race 
 excluded is sufficiently clear. But a political society in 
 which such exclusion is an important question, will be 
 necessarily different from that which has been generally 
 contemplated in the discussions of the present treatise, and 
 will be likely to require different laws in other matters 
 besides the franchise. 
 
 The exclusions that we have been considering bring 
 strongly before us the different meanings which may be 
 attached to the word " citizen." In its widest sense it is 
 simply opposed to " alien," and would include all members 
 of a State in which slavery is not allowed : but in States 
 in which the government or an important part of it is 
 elected by a widely extended suffrage, it is not uncommon 
 to mean by the " citizens " only those who have a right to 
 vote in such elections leaving out of sight the usually 
 larger part of the community that has not this right. The 
 word " people " is also used in the same restricted sense by 
 
 1 I may add that the danger, before noted, of an appeal to physical force 
 on the part of a preponderantly male minority, seems to me only to become 
 serious in the case of the extension of the franchise to wives.
 
 388 ELEMENTS OF POLITICS CHAP. 
 
 those who speak of " government by the people." It is 
 convenient to use both terms in this signification, and I 
 shall allow myself to do so without further explanation 
 where the context excludes ambiguity ; when there is a 
 danger of ambiguity, I shall speak of " electors " and 
 " electorate." 
 
 So far we have considered compulsory exclusions from 
 the exercise of electoral rights : it remains to ask whether 
 voluntary abstention should be allowed, or whether every 
 elector should be constrained to vote under penalties. Such 
 constraint has often been proposed ; but I think it unadvis- 
 able, for the following reasons: (1) If the elector is really 
 intimidated, and abstains from fear of giving offence, com- 
 pulsory voting may simply aggravate the evil : what is 
 needed is, if possible, to remove his alarms. (2) Ordinarily, 
 in collective decisions, neutrality of individuals is allowed : 
 it seems unreasonable to prevent it in electoral contests ; 
 and useless to drive a man to the poll to give a blank vote. 
 
 (3) So far as abstinence is due to lack of public spirit, it is 
 no doubt an evil, but an evil to be combated by moral 
 censure and suasion rather than by legal penalties. For 
 coercion will not generate public spirit, or secure that the 
 coerced vote is given from right motives and after due 
 consideration ; and, just as the development of genuine 
 public spirit in a community or class is the best protection 
 against a misuse of the franchise, so by forcing persons 
 devoid of it to vote we increase the danger of such misuse. 
 
 (4) One of the reasons for extending the franchise is to 
 prevent grave discontent with legislation or government : 
 but the risk from the discontent of voluntary non-voters is 
 hardly likely to be serious, as they will surely try what 
 can be done by voting before they proceed to sedition ; 
 they are more likely to be discontented if they are com- 
 pelled to vote, as all coercion annoys. 
 
 5. We have seen that any restriction of the suffrage 
 involves a prima facie danger that the interests of the 
 unenfranchised class will be sacrificed to the interests of the 
 enfranchised. In pointing this out, I did not mean to
 
 THE LEGISLATURE 389 
 
 imply that good legislation is a kind of bargain struck 
 between conflicting class-interests ; it is the interest of the 
 whole, which includes justice to all the parts, at which the 
 statesman should aim : and justice, as Mill says, consists 
 in giving a man not the half of what he asks, but the 
 whole of what he ought to have. But good legislation is a 
 result more likely to be attained in a representative assembly 
 in which such class-interests are fairly balanced, as each class 
 is more open to sound reason and impartial consideration of 
 the common good where the interests of others are concerned. 
 For this reason, as we have seen, a widely-extended suffrage 
 involves a danger of a different kind : viz. that the ultimate 
 interests of the whole community may be sacrificed to the 
 real or apparent class-interests of the numerical majority of 
 the electors, either through ignorance or through selfishness 
 and limitation of sympathy. 1 Nor is it easy adequately to 
 meet this danger by any such exclusion from the franchise, 
 on the score of poverty and ignorance, as appears to be 
 permanently defensible. But it may be more or less 
 effectively met by giving the wealthier and more educated 
 classes a representation in the legislature out of proportion to 
 their numbers. There are several different methods of effect- 
 ing this. The plan which largely for historical reasons 
 has been most widely adopted in West-European states, is 
 to divide the legislature into two Chambers, and give wealth 
 and political intelligence a preponderance in the " Upper " 
 Chamber, leaving the other to be elected by the citizens at 
 large on the basis of electoral equality. This plan will 
 be discussed in a separate chapter (XXIII.). Assuming for 
 the present that laws are enacted by a single representative 
 assembly, there are still various ways of aiming at the 
 desired end ; 2 but it may be most simply and effectively 
 attained either (1) by dividing the community into classes, 
 
 1 I leave it doubtful whether this effect is due to moral or intellectual 
 causes ; because it does not seem to me legitimate to assume a complete and 
 universal coincidence between the real interests of all classes and secti9ns of 
 the community, and the real ultimate interests of the whole community. 
 
 2 Two other methods, (1) limitation of eligibility, and (2) election in two 
 or more stages, will be noticed later.
 
 390 ELEMENTS OF POLITICS CHAP. 
 
 according to the amount of their income or presumable 
 intelligence, or both combined, and allotting to the higher 
 classes a larger proportional number of representatives than 
 to the lower; or (2) by giving more than one vote apiece to 
 the wealthier and more intelligent electors. The second of 
 these methods is called " Plural voting " ; but both together 
 may conveniently be spoken of as " Weighted voting." 
 
 In discussing the advantages and drawbacks of either 
 plan of electoral inequality, it is best to separate the con- 
 siderations of wealth and intelligence ; which as they tend 
 to be combined in any practical scheme I have so far put 
 together. The argument for weighting the votes of the 
 rich is that, man for man, the rich have more important 
 interests to defend than the poor. In considering this 
 argument, it is important to observe that it is not the larger 
 private interests of rich men that can justify the special 
 protection given by a larger share of electoral power, but 
 the social interests that are normally bound up with them 
 and indirectly defended in defending the private interests. 1 
 E.g. to throw the whole burden of taxation on accumulated 
 wealth is not objectionable because it would reduce the 
 incomes of the persons taxed, but because by checking the 
 impulse to accumulate wealth it would ultimately diminish 
 the aid rendered by capital to industry. So again, excessive 
 interference, in the interest of labour, with the management 
 of industrial capital is objectionable not because it reduces 
 the profits of individuals, but because it needlessly diminishes 
 the inducements to invest capital in England. The em- 
 ployer or manager of capital has normally far fuller know- 
 ledge than his employees, of the conditions favourable and 
 
 1 In itself, the unequal share of wealth enjoyed by any rich individual 
 does not call for special protection ; since this inequality in the distribution 
 of wealth is prima fade not conducive to general happiness. We cannot 
 indeed say that every man's happiness is of equal importance as an element 
 of the general happiness ; because development of intellect and refinement 
 of taste generally imply a capacity for superior pleasures. But it is just 
 because this higher kind of happiness is at present enjoyed by few that 
 a distribution of wealth much less unequal than the present would be 
 undoubtedly desirable if it could be effected without any material diminu- 
 tion in the total amount to be distributed.
 
 xx THE LEGISLATURE 391 
 
 unfavourable to the industry that he directs: and in de- 
 fending his own interests he will to an important extent 
 indirectly defend the economic interests of society as regards 
 this branch of industry. 
 
 This leads us to the second ground for inequality, 
 superior political knowledge and insight. This undoubtedly 
 tends to be possessed 011 the average by the classes with 
 larger incomes ; partly from their more advanced education, 
 and the habits of reading and thought thus acquired, partly 
 from the exercise of intellect involved in the management 
 of property, in the direction of industrial and commercial 
 undertakings, and in the work of the " learned " professions 
 and other higher forms of skilled labour. Superiority of 
 this kind, however, does not universally, or at all uniformly, 
 accompany wealth ; and may in particular cases be pos- 
 sessed by very poor persons ; accordingly, in any system of 
 weighted voting formed on this basis, it is important that 
 it should be open to the poorest to show themselves entitled 
 by passing examinations or otherwise to the larger 
 share of electoral power allowed to intellectual superiority. 1 
 
 Both these reasons for electoral inequality appear to me 
 strong ; but the difficulties in the way of a satisfactory 
 scheme of weighted voting are very great. In the first 
 place, however fully we admit the general considerations 
 above stated, any scheme for applying them must neces- 
 sarily be to a great extent arbitrary : we have no means of 
 determining, with any pretence to exactness, how much 
 additional electoral power is due to wealth on account 
 of the implication of social with private interests, or 
 how much properly corresponds to any available evid- 
 ence of probable superiority in political judgment. Hence 
 any particular plan of electoral inequality will always pre- 
 sent plausible grounds for agitation to modify the standards 
 applied: while the interests of classes and parties will 
 always supply strong motives for such agitation. Secondly, 
 in considering balance of interests, it must be borne in 
 mind that it is impossible to divide society into classes 
 
 1 See Mill, Representative Government, chap. viii.
 
 392 ELEMENTS OF POLITICS CHAP. 
 
 which remain identical and equally distinct for all legis- 
 lative purposes : as we pass from one proposed law to 
 another, we find that the important lines of division are 
 continually changing. In England (e.g.} for some purposes 
 we have the " agricultural " opposed to the " manufacturing 
 interests " ; sometimes, again, the conflict of interests is 
 between manual labourers generally and their employers, 
 sometimes between persons to whom fixed money-payments 
 are due and the rest of the community: and no one of 
 these oppositions coincides importantly with either of the 
 other two. Hence any weighting of the vote of wealth must 
 always involve some danger that the private interests of 
 the few may prevail when they are not coincident with 
 social interests : in which case the weighted vote has not 
 only an invidious appearance of aggravating the natural 
 inequalities of a modern industrial society by adding arti- 
 ficial political inequalities to correspond, but tends to cause 
 a real injustice corresponding to this appearance. The 
 weighting of votes on the score of superior intelligence is 
 hardly less difficult and invidious ; from the impossibility 
 of finding any satisfactory criterion of the superiority in 
 political knowledge and judgment which constitutes the 
 only valid claim to greater electoral power. For, in the 
 present state of the political art, such superiority is 
 largely derived from personal experience, and reflection on 
 such experience : and in any case requires a steady direction 
 of thought to political questions, of which, in most cases, a 
 satisfactory guarantee is not afforded either by prolonged 
 education, or certificates of scholastic attainments, or the 
 exercise of professional functions. A thoughtful artisan 
 who has only had an elementary education may easily have 
 more political insight and even knowledge than e.g. 
 a schoolmaster, physician, or engineer whose intellectual 
 energies are absorbed in his special pursuit. 
 
 Further, it must be borne in mind that superior intelli- 
 gence, directed to political exposition and persuasion, is 
 always likely to have great indirect electoral power by its 
 influence on the votes of others : and this is a natural
 
 XX THE LEGISLATURE 393 
 
 advantage of the educated classes in the struggle of class- 
 interests, free from the invidiousness and arbitrariness 
 inevitable in any artificial scheme. Similarly, we must 
 recognise that, even without a formal advantage in voting 
 power, men of wealth are likely always to count practically 
 for more than one vote each. "We must recognise, as was 
 before said, that bribery cannot be completely prevented : 
 nor, probably, even intimidation. And even apart from 
 bribery, gratitude for services, private or public and hopes 
 of similar services in the future will always be motives 
 operating on the side of wealthy candidates, or candidates 
 with wealthy backers. . In one way or another, the economic 
 power which wealth gives is likely always to be available 
 for political ends. 
 
 These considerations somewhat reduce the danger that a 
 widely extended suffrage prima facie involves, of legislation 
 in which the interests of the rich minority are sacrificed 
 to those of the poor majority in a manner disadvantageous 
 to the community as a whole. Still they do not suffice to 
 show the danger to be immaterial ; and it is, I think, likely 
 to become more formidable in the future history of Western 
 Europe and America than it has been in the past : since 
 we have not yet seen the working of a thoroughly organised 
 democracy, with a strong urban element, in a crowded 
 country with very marked contrasts of wealth and poverty. 
 It seems to me preferable, if possible, to meet this danger 
 by developing the natural and legitimate influence of 
 wealth, when used as a means of performing social services, 
 and of intelligence, when directed to political instruction 
 and persuasion. 1 But if these prove inadequate, it may be 
 
 1 Something may, I think, be hoped for from the future progress of 
 political and economic science. There is no reason to think that the value 
 of political insight is underrated by thoughtful persons generally in any 
 class, and if the less educated have now a difficulty in determining where it 
 lies, and are liable to take a charlatan for a statesman, it is largely because 
 educated opinion is so divided ; because the "royal art" of government, 
 as judged by the criterion of "consensus of experts," is still in so rudi- 
 mentary a condition. If in the future, through the progress of knowledge, 
 disinterested students of politics should come to greater agreement, it is
 
 394 ELEMENTS OF POLITICS CHAP. 
 
 expedient, if the conditions of political opinion in any 
 country admit of it, to have recourse to the method of arti- 
 ficial weighting. If so, the plural vote seems on the whole 
 preferable to the plan of division into classes unequally 
 represented, as the latter method emphasises somewhat 
 more invidiously the class -distinctions which both sub- 
 stantially recognise. In any case, if the weighted vote is 
 to be effective, the standard either of wealth or intellectual 
 attainment should be low, so that the increased electoral 
 power allotted to them may be widely shared, and the in- 
 vidiousness of heaping votes on a privileged few may be 
 avoided. 
 
 6. I pass to consider how the community is to be 
 divided for the purpose of obtaining the various sections 
 which are to be separately represented in the legislative 
 assembly assuming for simplicity that the division aims 
 at an equal distribution of electoral power among the 
 citizens. Local divisions are most obvious and natural : 
 but reflection shows that they involve the practical dis- 
 franchisement, in each locality, of a minority that may 
 amount to nearly one-half: and even in the case of the 
 majority the candidate may be only taken faute de mieux 
 by a great many of those who vote for him. Hence it has 
 been suggested that, in order to obtain a truer representa- 
 tion of different interests and opinions, the formation of 
 constituencies by free combination, independent of locality, 
 should be allowed. This suggestion has been worked out 
 by Mr. Hare l into an elaborate scheme : the advantages of 
 which, both as a more complete realisation of the funda- 
 mental principle of representative government, and as a 
 security against the dangers of a widely extended suffrage, 2 
 
 reasonable to hope that the less educated will in preponderant numbers 
 follow their lead. 
 
 1 See The Election of Representatives, by Thomas Hare ; also Mill, Repre- 
 sentative Government, chap. vii. 
 
 2 If the plan of local divisions be adopted, there is an obvious danger 
 that under a widely-extended franchise, with a strong class-conflict between 
 the poor and the rich, the minority enjoying comfort and culture will be 
 represented by a still smaller minority in the legislature.
 
 xx THE LEGISLATURE 395 
 
 are urged by its advocates with much force and enthusiasm 
 of conviction. It appears to me, however, to be open to 
 the following serious objections : 
 
 1. There is a danger of losing a valuable protection 
 against demagogy, if we remove the natural inducements 
 which local divisions give for the more instructed part 
 of the community to exercise their powers of persuasion 
 on the less instructed. If the divisions are local, the 
 wiser few in each locality, in order to carry the candidate 
 of their choice, have to convince their neighbours, and thus 
 the natural sociability springing from neighbourhood tends 
 to become a channel of political education : but if an in- 
 structed minority were allowed to combine with others on 
 their own intellectual level elsewhere, this valuable edu- 
 cative influence would tend to be lost. This consideration 
 seems to me materially to reduce the probable efficacy of 
 this plan of representation as a protection against the danger 
 of pernicious class-legislation. 
 
 2. Though it is the aim of the representative system to 
 secure intelligent concern for the special needs of different 
 classes and sections, it is hardly desirable that each repre- 
 sentative should represent exclusively one set of particular 
 interests or opinions : we want for legislators men of some 
 breadth of view and variety of ideas, practised in comparing 
 different claims and judgments and endeavouring to find 
 some compromise that will harmonise them as far as possible. 
 For a compromise of this sort is largely the kind of result 
 to which the deliberations of the assembly as a whole ought 
 to be directed : it is well, therefore, that the members of 
 the assembly should be persons qualified to find it. Now 
 it certainly seems to me that this is likely to be less the 
 case if the community is not locally divided for electoral 
 purposes. If the citizens are left to aggregate themselves 
 into constituencies by free combination they are likely to form 
 electoral bodies of a more uniform character, whether the 
 combination is based upon identity of interests or similarity 
 of opinions. The legislators will tend to represent either par- 
 ticular trades or professions, or particular religious sects, or
 
 396 ELEMENTS OF POLITICS CHAP, 
 
 other associations, tending to be somewhat fanatical, of 
 persons combining to effect special legislative ends total 
 abstainers, anti - vivisection! sts, anti - vaccinationists, and 
 the like : unless as is possible the result should be a 
 more elaborate organisation of the great political parties, 
 in which they would be subdivided into constituencies by a 
 central committee, so that the elector's freedom of choice 
 would disappear. 1 
 
 On these grounds I am opposed to the introduction of 
 Mr. Hare's, or any similar, scheme for the representation of 
 minorities, as applied to the country as a whole. But 
 granting that the principle of local divisions be adopted, it 
 still remains to be considered how the divisions are to be 
 formed. The simplest plan is to divide the country into as 
 many approximately equal parts as there are to be members 
 in the representative assembly, so that each such part may 
 elect one member : and the simplicity of the plan is an 
 undoubted merit, since any more complicated arrangement 
 is through its complexity more liable to inequalities tending 
 to become grievances. It has, however, been urged 2 as a 
 strong objection against this plan that it gives too much 
 advantage to a candidate of local, as compared with one of 
 national reputation : 3 so that it leads to the election of less 
 
 1 It will be obvious that this second objection applies with still greater 
 force against a formal division of the community into trades and professions 
 for electoral purposes. I have not thought it necessary to argue against 
 this principle in the text ; since though it was extensively adopted in the 
 construction of governing bodies in the cities of mediaeval Europe, it has 
 not been formally introduced into any modern constitution (except to a very 
 limited extent in the construction of the Senate or Upper Chamber). The 
 massing of certain classes of labourers in particular districts, which the 
 development of modern industry has caused, has, indeed, led to its practical 
 realisation in some cases : but this partial and limited representation of 
 economic classes is not open to the objections that are valid against a 
 systematic organisation of the electorate on this basis. 
 
 2 This argument has been much used in the controversy in France between 
 "scrutin de liste" and " scrutin individuel" or " d'arrondissement. " 
 
 3 Here I may remark that a critic of my first edition asked, " Why is 
 nothing said about the very important question whether the electors should 
 be limited in their choice to persons resident in the electoral district or 
 not ? " My answer is that I know no reason worth discussing in favour of a 
 compulsory limitation of this kind.
 
 xx THE LEGISLATURE 397 
 
 distinguished men as legislators. There is some force in 
 this argument ; but the disadvantage seems likely to tell 
 rather against the lesser than the greater luminaries ; since 
 a statesman of great national reputation could hardly fail to 
 command a majority in some one small division, unless he 
 were so generally unpopular that he would be likely to be re- 
 jected by the majority in a larger division. And, undoubtedly, 
 what I have regarded as the main aim of the representative 
 system to secure in the legislature adequate knowledge of 
 and concern for the various needs and interests of different 
 sections of the community is, on the whole, more likely to 
 be realised the more numerous the electoral divisions are, 
 supposing that only majorities are represented. On the 
 other hand, the simplicity of this plan of division is artificial, 
 and involves the disadvantage of breaking up for electoral 
 purposes portions of the community, such as towns 
 generally are, 1 which tend to have an intimate internal 
 coherence in their economic and social life, and consequently 
 important common interests. Generally speaking, to under- 
 stand adequately the legislative requirements of any division 
 of a town, a man must have a grasp of its economic life as 
 a whole ; and this is a strong reason for arranging that the 
 representatives of a town or any other naturally distinct 
 and internally coherent parts of the country should repre- 
 sent it as a whole. If, however, the electoral divisions are 
 thus made to correspond as far as possible to natural divisions, 
 there will in many cases be divisions which will require to 
 be represented by several members : so that the question 
 will arise again whether all the members of each electoral 
 division should be elected by the majority each elector 
 voting for all or whether some representation of minorities 
 should be devised. In this more limited application the 
 obvious advantages of minority representation seem to me 
 decidedly to outweigh the drawbacks : and it is chiefly from 
 this point of view that the plan is now recommended by its 
 leading advocates. 
 
 1 The capitals of large states should perhaps be excepted, as liable to lack 
 the internal cohesion on which stress is here laid.
 
 398 ELEMENTS OF POLITICS CHAP. 
 
 There are various modes of securing the representation 
 of minorities in an election in which several candidates 
 are to be chosen : the most effective l are framed on the 
 .plan of allowing any party or group of electors to have 
 a representative, if the votes given for him reach the quota 
 obtained through dividing the whole number of votes given 
 by the number of places to be filled. I will briefly describe two 
 leading varieties of this plan. The first Mr. Hare's may 
 be distinguished as the Preferential vote. According to this 
 each elector only gives one vote, but he is allowed to deliver 
 a voting-paper on which the names of candidates may be 
 written in any number not exceeding the number of places 
 to be filled up. The names are understood to be in order 
 of preference. Then if a vote for the name first on the list 
 turns out to be superfluous, because the candidate's quota of 
 votes is already made up, the vote is counted for the name 
 second on the list ; and similarly, if need be, for the third, 
 and so on. The weak point of this scheme is that no 
 thoroughly satisfactory method has been devised for select- 
 ing the particular votes that are to count for any candidate 
 who has votes in excess of the required quota. This defect 
 is avoided in a Swiss form of the method of the quota, 
 which combines party -voting with voting for persons. 
 According to this plan each of the different parties of 
 electors puts forward a list of candidates ; and the primary 
 division of votes is among lists, not persons. Each elector 
 votes for one or other of the parties, giving as many votes 
 as there are places to be filled up, and at the same time 
 naming any candidate or candidates whom he prefers ; but 
 he cannot indicate a preference among the names that he 
 expressly selects. He may include among these names one 
 
 1 Among less effective methods we may notice (1) the Limited vote, by 
 which each elector is restricted to either a single vote, or at any rate a 
 smaller number of votes than there are candidates ; and (2) the Cumulative 
 vote, which gives each elector as many votes as there are candidates, but 
 leaves him free to bestow them all, or any number of them, on the same 
 candidate. Either of these methods tends rudely and imperfectly to the 
 representation of minorities ; but it is only by accident that either approxi- 
 mates at all as closely to a proportionate representation of divergent opinions 
 as the method of the quota.
 
 xx THE LEGISLATURE 399 
 
 or more candidates of some other party : but if so, for each 
 such name a vote will be subtracted from the aggregate of 
 votes given for his own party, and counted for the party 
 to which the candidate belongs. Then any party which 
 obtains a number of votes amounting to the quota will 
 have one representative, or if they amount to twice the 
 quota, two, and so on : the particular candidates selected in 
 each case being those who have received the largest number 
 of express personal votes. 1 
 
 Whatever principle of dividing electoral districts be 
 adopted, it is important to provide for a rectification of the 
 division from time to time, to meet changes in population. 
 Such a rectification should not, I conceive, be regarded as 
 a constitutional change ; it should be performed regularly, 
 as a natural consequence of a periodical census ; and where 
 party government prevails, it will be better that it should 
 not be performed by the legislature but by a permanent 
 commission in order to avoid or reduce the danger of 
 " gerrymandering." 2 
 
 Assuming that the plan of local divisions is adopted, a 
 question arises as to the length of residence that should be 
 required as a condition of voting in any district. It seems 
 desirable that it should be long enough to secure, on the 
 average, some knowledge of local affairs in the voter, and at 
 
 1 When all the whole quotas made up have obtained representatives, the 
 fractions that remain over have to be compared for the remaining places. 
 There is a little difficulty in determining the principle of comparison ; but 
 the fairest plan seems to be to allot the next place, not to the largest 
 fraction of a quota, but to the party whose aggregate of votes forms the 
 largest proportion of the number made by adding one quota to its sum of 
 whole quotas : and so on for the remaining places. E.g. if the quota is 
 1000, and one party (A) has 2700 votes, while another (B) has 3650, a 
 fourth representative will be allotted to (B) rather than a third to (A). 
 
 2 "The aim of gerrymandering is so to lay out the [electoral] districts as 
 to secure in the greatest possible number of them a majority for the party 
 which conducts the operation. This is done sometimes by throwing the 
 greatest possible number of votes into a district which is anyhow certain to 
 be hostile, sometimes by adding to a district where parties are equally 
 divided some place in which the majority of friendly voters is sufficient 
 to turn the scale." Bryce, American Commonwealth, Part I. chap. xiii. 
 p. 165. The danger of gerrymandering is, of course, much reduced by the 
 adoption of any plan of representing minorities.
 
 400 ELEMENTS OF POLITICS CHAP. 
 
 the same time to hinder by rendering costly attempts to 
 introduce strangers on a large scale into the constituency, 
 in order to make up an artificial majority. But it is un- 
 desirable that it should be so long as to exclude from the 
 franchise any considerable number of otherwise qualified 
 citizens. 1 
 
 8 7. So far we have been considering the allotment of 
 the right to elect. I pass to consider restrictions on 
 eligibility. These will reasonably coincide to a great 
 extent with the limitations on the " active " right. Thus 
 crime, infamous trade, loss of economic independence, ex- 
 treme poverty and ignorance, should disqualify equally in 
 both cases : and if a minimum of age higher than that 
 of ordinary legal maturity be adopted for electors, it will 
 be reasonable to put the same restriction on candidates. 2 
 Other important limitations such as the incompatibility 
 of legislative functions with employment in the executive 
 departments will be more conveniently considered in a 
 subsequent chapter. 3 Apart from these, the most important 
 question under this head is whether it is desirable to require 
 a legislator to possess an income, or show evidence of in- 
 tellectual attainments, considerably above the minimum 
 if any imposed as a condition of exercising the franchise. 
 The arguments both for and against such a regulation are 
 partly similar to those already discussed in considering the 
 weighted vote. On the one hand it is fairly urged that 
 legislation is an art that can hardly be fittingly under- 
 taken except by persons of high intellectual culture : and 
 that only those whose income is above the average are 
 likely to have had the time and means necessary for the 
 acquisition of such culture. On the other hand it may be 
 replied that legislation is an art that is yet in a very 
 rudimentary condition, in respect of the application of 
 
 1 The danger of such exclusion is likely to increase with the progress of 
 civilisation, as the development of industry increases the mobility of labour. 
 
 2 I see no adequate reason for adopting a higher minimum of age in the 
 case of the elected than in that of the elector as is done in several modern 
 European constitutions. 
 
 3 See Chap. XXII. on "The Relation of the Legislature to the Executive."
 
 xx THE LEGISLATURE 401 
 
 science and systematic method : that the knowledge and 
 intellectual training, really useful for purposes of practical 
 politics, which an ordinary legislator from the ranks of 
 cultivated society has obtained from schools and colleges 
 and books, is not very important in extent; nor beyond 
 what an intellect of exceptional vigour can acquire in any 
 class of society, in spite of the disadvantages of a short 
 education and a life spent in manual labour. It may 
 be urged further that the limitation of eligibility to a 
 minority of comparatively wealthy persons is incompatible 
 with an adequate realisation of the general aims of repre- 
 sentative government ; since, in order to obtain the varied 
 empirical knowledge and the sympathetic insight into the 
 needs of all sections of society, which we saw to be the 
 characteristic merit of this form of government, it is neces- 
 sary that every class of electors should be free to choose 
 its own members. Moreover, the limitation must have a 
 tendency to diminish the interest taken by the poorer 
 classes in the election of legislators, and to weaken their 
 confidence in the legislators elected. 
 
 These arguments seem to me very strong against any 
 formal limitation of eligibility by the requirement of definite 
 pecuniary or educational qualifications : but they do not apply 
 with anything like equal force to an arrangement which 
 without excluding any class would yet operate very decidedly 
 in favour of candidates possessing such qualifications. And 
 this result, I conceive, may be simply attained by attaching 
 no salary to the post of legislator. In this case, it will still 
 be possible for any class in the community to select re- 
 presentatives from its own ranks : only if they have no 
 independent means they will require to be supported by 
 voluntary contributions : and the electors are hardly likely 
 to tax themselves for this purpose unless they have a very 
 decided preference for such candidates. 1 
 
 1 It may be said that this is unfair to the poorer classes, who will have to 
 tax themselves in order to be represented by members of their own class, 
 while wealthier persons are so represented gratis. But the tax will be com- 
 paratively trifling, in a community of the size of an ordinary modern state : 
 since the salary thus provided should not be large enough to stimulate vulgar 
 
 2D
 
 402 ELEMENTS OF POLITICS CHAP. 
 
 I admit that it may be necessary to provide public 
 remuneration for the work of legislation in poor communi- 
 ties, in which it would be difficult without payment to find 
 fit persons to undertake it. But in societies as wealthy as 
 modern states generally are, it cannot be difficult to find an 
 adequate number of persons, qualified by nature and training 
 and enjoying pecuniary independence, to devote themselves 
 to this important and interesting work : which, if public 
 opinion is in a healthy state, they will regard as at once a 
 duty and an honour. And if the representative assembly 
 is in the main composed of such persons, another very 
 important advantage will be gained : it will tend to maintain 
 a higher standard of pecuniary incorruptibility than would, 
 ceteris paribits, be likely to be found in an assembly of paid 
 professional legislators, unless they were paid much more 
 highly than has ever been proposed. I do not mean that 
 it would ever be possible or desirable to compose a 
 legislature entirely of persons whose mere wealth renders 
 them unlikely subjects for corruption : but in a body whose 
 members are to a great extent drawn from this class it will 
 generally be easier to keep up a severe tone of public opinion 
 in reference to the pecuniary temptations to which a legislator 
 is exposed. If it be said that an assembly in which com- 
 paratively rich men preponderate will tend, in framing 
 legislative measures, to have special regard to the class- 
 interests of the rich, I should reply that this tendency, in 
 a country where the suffrage is widely extended, may reason- 
 ably be regarded not as a drawback, but as a valuable security 
 for just legislation ; in view of the grave danger already 
 noticed that the apparent interests of the poor, who form 
 the numerical majority, will be preferred to the real ultimate 
 interests of the whole community. 
 
 8. We have seen that one of the arguments against 
 the restriction of eligibility just considered, is that it tends 
 
 ambition or to enable and encourage the recipient to live in more expensive 
 style than he would otherwise have done : it should be strictly limited to 
 compensation for the earnings that he has to forgo and for any quite inevitable 
 expenses entailed by his new position.
 
 xx THE LEGISLATURE 403 
 
 to weaken the tie of confidence between the majority of 
 the citizens and their representatives. A similar objection 
 applies against the method of election in two l stages which 
 has been adopted in more than one modern constitution ; 
 according to which the citizens at large merely elect electors 
 to whom the election of legislators is entrusted. Moreover, 
 where the party-system 2 is fully developed, there is a danger 
 that the double election may be reduced to a cumbrous 
 formality : the intermediate electors being chosen under 
 pledges or if pledges are illegal, under a stringent though 
 tacit understanding that they will vote for the candidates 
 of their party. This might perhaps be prevented by choos- 
 ing the intermediate electors for comparatively long periods, 
 independent of the duration of the legislative assembly : 
 but then the ordinary citizen's sense of control over legisla- 
 tion would be further weakened. 3 It might also be partly 
 prevented by giving the immediate electors other important 
 functions besides that of electing legislators : e.g. by giving 
 the election of legislators to organs of local government 
 elected by the citizens at large : but this would have the 
 drawback of introducing alien considerations into the 
 election of the local governors ; since the man who would 
 be preferred as an elector to the central legislature may not 
 be best qualified for the function of local government or 
 may not be willing to undertake it. At the same time 
 election in two stages has certainly a prima facie tendency 
 to improve the quality of the legislative assembly, if it does 
 not become a formality, and if both parts of the process are 
 performed with independence and honesty of purpose : since 
 the competence of the elected electors may be expected to 
 be on the average greater than that of the citizens who 
 
 1 I suppose only two stages for simplicity, and because the plan of indirect 
 election has hardly ever been adopted in a more complicated form. But 
 there might, of course, be three or more stages. 
 
 2 See Chap. XXIX. 
 
 3 Also, if the intermediate electors were chosen for periods independent of 
 the duration of the legislative assembly, the "appeal to the people" by 
 a dissolution of the assembly which we shall see to be a cardinal point of 
 the English system of parliamentary government could not be effectually 
 carried out.
 
 404 ELEMENTS OF POLITICS CHAP. 
 
 elect them, and their sense of responsibility stronger : also 
 either set of electors is more likely to have useful per- 
 sonal knowledge of the candidates among whom it has to 
 choose. On the whole, it would seem that the advantages 
 of the plan of election in two stages are likely to be greatest; 
 and its drawbacks least, if it is reserved for the appoint- 
 ment of a second and supplementary chamber, designed to 
 be less directly under popular control than that which is 
 primarily the " House of Eepresentatives," supposing that 
 such a second chamber is held to be desirable as a part 
 of the legislative organ. 
 
 We are thus led to the last of the principal expedients 
 which have been proposed or adopted to remedy the defects 
 of a legislative assembly elected by a widely extended 
 suffrage most simply applied. We have considered five 
 modes of modifying the suffrage : 
 
 (1) By restricting the active electoral right. 
 
 (2) By distributing representatives not in proportion to 
 
 numbers. 
 
 (3) By organising representation of minorities. 
 
 (4) By restricting the right to be elected, formally or 
 
 practically. 
 
 (5) By election in two stages. 
 
 It remains to discuss the method, just mentioned, of 
 placing side by side with the House of Eepresentatives a 
 legislative body otherwise appointed a " Senate " or " upper 
 chamber." This modification of the structure of the legis- 
 lative organ has been adopted in most modern constitu- 
 tions. It is, however, of such fundamental importance that 
 it seems desirable to reserve the discussion of it for a 
 separate chapter : and, for reasons that will appear in the 
 sequel, I think it best to defer this discussion until we have 
 considered the proper construction of the executive organ of 
 government, and its normal relations to the legislature. 
 
 For similar reasons I shall also defer several important 
 questions connected with the constitution and functions of 
 the legislature: such as (1) how far its powers should be 
 constitutionally limited, either to secure the independence
 
 xx THE LEGISLATURE 405 
 
 of other organs or on other grounds : l (2) whether elections 
 should be at fixed intervals, or at the discretion of the 
 executive or of the constituencies ; and if at fixed intervals, 
 how long the intervals should be, and whether the renovation 
 of the assembly should be total or partial : 2 (3) whether the 
 sessions of the legislature should be continuous through the 
 year, and if not, whether the opening or the closing of 
 legislative sessions should be fixed, or left to the discretion 
 of the legislature, or of the executive : 3 (4) whether the 
 validity of disputed elections should be determined by the 
 assembly itself or by the judiciary : 4 (5) whether the initia- 
 tion of legislative measures should be formally open to the 
 executive, or to private citizens combining in sufficient 
 numbers, as well as to members of the assembly. 5 
 
 9. For the present I shall only assume that, for good 
 government in a modern civilised community, a representa- 
 tive assembly, of which the members are elected for a limited 
 time, should constitute at least an important part of the 
 legislative organ. Let us now proceed to consider briefly 
 the size, organisation, and mode of working of such an 
 assembly. As we have seen, its proper function is not 
 exactly to frame laws, but rather to determine the char- 
 acter of the legislative measures to be brought forward, 
 and by an adequate critical deliberation on their details 
 to shape and mould them into the form best adapted 
 to satisfy the complex needs, and to secure from injury 
 the complex interests, of the different classes of citizens 
 affected by them. It is for this function that the re- 
 presentative system has seemed to us specially adapted : 
 and obviously the larger a representative assembly is, the 
 more fully other things being equal its representative 
 character admits of being developed, and the more varied and 
 comprehensive will be the information and experience that 
 it can bring to bear upon the problems presented to it. 
 
 1 See Chap. XXII. 8, 11, and Chap. XXVII. 4. 
 
 2 See Chap. XXII. 3, 9, Chap. XXIII. 3, p. 475, and Chap. XXVII. 2. 
 See Chap. XXII. 10. 4 See Chap. XXIV. 2, p. 485. 
 
 s See Chap. XXII. 10, p. 458, Chap. XXVII. 2-4.
 
 406 ELEMENTS OF POLITICS CHAP. 
 
 Moreover, the larger a legislative body is made, the more 
 difficult it becomes for the members to combine successfully 
 for purposes recognised as improper. On the other hand, 
 the enlargement of the assembly beyond a certain point 
 tends to give undue advantage in debate to the less valuable 
 qualifications for oratory, and makes its meetings more liable 
 to lapse into the confusion, impulsiveness, and intemperance 
 of a mob : and it involves the further drawback that the 
 members have greater difficulty in obtaining useful personal 
 knowledge of each other. The most suitable number can 
 only be determined by a rough balance of these opposing con- 
 siderations ; and it will reasonably vary with the size of the 
 community; but we may perhaps take the number (670) of 
 the English House of Commons the largest of modern 
 representative chambers as an extreme limit, if not clearly 
 excessive. In any case the whole assembly is likely to be 
 too large a body for the profitable discussion of the details of 
 legislative measures ; and the varied knowledge and experi- 
 ence which it may be expected to contain will be more 
 effectively applied to its work if it is broken into committees, 
 to each of which the consideration of certain classes of 
 measures is allotted ; the final adoption or rejection of any 
 proposed law being reserved to the House as a whole. 
 Whether the main preparation of legislative business should 
 be left in the hands of a single leading committee, is a 
 question of which the decision is likely to be influenced by 
 the relation of the legislature to the executive : but this 
 arrangement has important advantages, from a purely legis- 
 lative point of view, since the concentration of responsibility 
 that it involves is conducive to a systematic and well- 
 considered ordering of legislative work. 1 The initiation 
 of legislation should in any case be open to all members, 
 the House being free to determine to what extent and 
 under what conditions any legislative proposal should be 
 orally debated. 
 
 A point of some importance is the determination of the 
 
 1 See Mr. Bryce's criticism of the American system, in which there is no 
 such concentration. American Commonwealth, Part I. chap. xv.
 
 THE LEGISLATURE 407 
 
 minimum number required either (a) for the opening or 
 continuance of debate, or (6) for the validity of any decision. 
 For the first purpose a comparatively small " quorum " 
 ought, I think, to suffice : since it hardly seems desirable 
 to subject legislators to any irksome coercion to attend 
 debates in an advanced stage of civilisation ; as the 
 printing-press supplies a means of considering the argu- 
 ments for or against a legislative proposal, often preferable 
 to speeches. Again, since, in the multiplicity of legisla- 
 tive business, there must be many subjects on which 
 the majority of members would in any case allow their 
 votes to be determined by the opinions of a comparatively 
 small number, it does not seem expedient to make a high 
 minimum of votes or attendance absolutely necessary for 
 the validity of decisions : all that seems needful is to 
 provide that questions are not designedly or accidentally 
 decided in a manner opposed to the really predominant 
 opinion of the assembly. The simplest way of attaining 
 this result seems to be to arrange that a decision shall be 
 valid however small the number voting, if it is not challenged ; 
 but that it may be challenged if the number voting falls 
 short of a certain proportion of the whole ; and that, if it is 
 challenged, the decision shall be deferred till a fixed time 
 on the following day, and shall be then decided without 
 debate by a majority of those voting, however small the 
 number may be.
 
 CHAPTEK XXI 
 
 THE EXECUTIVE 
 
 1. WE have seen that the governmental business classed 
 as executive is very diverse in kind. It should include all 
 the measures required for the due protection of the interests 
 of the community and its members in their relations with 
 foreigners, especially the organisation and direction of the 
 military forces of the State ; all the actions not strictly 
 judicial required to prevent members of the community 
 from causing injury to each other or to the public interests, 
 and to secure their co-operation for common ends, so far 
 as this is not better left to voluntary association ; and 
 finally, all the industry required for utilising such part of 
 the wealth and resources of the community as it is expe- 
 dient to keep in public ownership, and for providing all 
 commodities needed by the State or its members that are not 
 better provided by private industry and free exchange. The 
 extent of the work under these different heads, especially 
 the last mentioned, will vary with the circumstances of the 
 community and its political and social habits and traditions ; 
 but in all modern States its multifarious nature has led 
 to its distribution into several departments, under separate 
 management for ordinary purposes. Now when we speak 
 in constitutional discussion of " the executive," or " the 
 executive branch of government," we commonly refer not 
 to the whole aggregate of persons engaged in the perform- 
 ance of these functions in the different departments, or 
 even to all who exercise coercive power it would seem 
 
 408
 
 CHAP, xxi THE EXECUTIVE 409 
 
 absurd to speak of the policeman who bids one " move on " 
 as a " member of the executive," but to the body or 
 individual that exercises supreme control, within the limits 
 of law, over all these functions, or the most important of 
 them. 1 The first question, therefore, that suggests itself in 
 considering the structure of the executive organ of govern- 
 ment is why any such unity of supreme control over all the 
 branches of executive business is required, in addition to the 
 control of the legislature and the judiciary. 
 
 In considering this question we must put out of sight 
 the actual conditions of English government ; in which the 
 " Cabinet," formed by the Parliamentary heads of the chief 
 executive departments, is in fact a committee of the legis- 
 lature, whose work largely consists in first preparing and then 
 carrying through the legislature the most important new laws. 
 Let us suppose that this work is done by other committees 
 of the legislature, and that the " ministers " composing the 
 Cabinet have merely to manage the executive work of their 
 departments ; each making proposals from time to time for 
 such new legislation as seems desirable in his own department, 
 and advising on the proposals that are made by other persons 
 affecting his work, but not otherwise taking part in legislative 
 business. "What reason would there then be for controlling 
 the independence of action of ministers within their respective 
 departments so far as the law left them discretion further 
 than by the criticism of the legislature, backed by its power 
 of legislative interference ? 
 
 In the first place, the advantage of such further control 
 is manifest, so far as the work of any one department is so 
 related to the work of another that a mutual adjustment 
 is continually required for the efficient performance of both : 
 since in this case a disagreement in policy between two 
 heads of departments might lead to a disastrous paralysis 
 of governmental activities, and it will be clearly a gain to 
 
 1 It is generally agreed that some functions may be properly placed under 
 the management of local governments ; but the question how far these local 
 governments should be independent of central control is one that we have 
 yet to consider.
 
 410 ELEMENTS OF POLITICS CHAP. 
 
 obviate or materially reduce this danger by placing both 
 under the supreme control of king, president, prime minister, 
 or council. Now in the case of many departments of 
 executive work it cannot be said that this intimate con- 
 nection ordinarily exists : for instance, there seems to be 
 no such need of continuous adjustment between the work 
 of a Ministry of Education and that of the Post Office or a 
 Ministry of Public Works, or between any of these depart- 
 ments and the Foreign Office, or the management of the 
 Army and Navy ; the idea of a " unity of general policy " 
 to be maintained in the ordinary administration of all these 
 departments would be quite fanciful. Still, there are im- 
 portant cases in which this unity of policy is a continual 
 need ; thus in England questions of foreign affairs have to 
 be constantly considered in reference to their effects on 
 colonial interests ; 1 and in other cases collisions and frictions 
 are liable to occur from time to time, which a common 
 control might prevent or speedily remove. But it is 
 especially at grave crises of national existence that the 
 importance of unity of control to secure harmony of action 
 among the principal departments of the executive becomes 
 manifest. Thus, in war, it is obviously necessary that 
 the management of the army and that of the navy should 
 harmonise with each other, and with the management of 
 foreign affairs, and also with that of the financial depart- 
 ment, at any rate if financial pressure should occur. If, 
 again, the war should be complicated by internal disorder 
 or sedition, it would be important that the Home Depart- 
 ment should not be at discord with the others. Again, as 
 we have seen, the State must be prepared for exceptional 
 occasions of extreme need, on which law has to be overridden 
 or temporarily suspended by the executive for some great 
 interest of social order or wellbeing ; and it is important 
 that the responsibility of such interference should not rest 
 on a single head of a department. 
 
 Secondly, it seems clear that all departments of which 
 the expenditure is considerable and liable to vary, must, so 
 
 1 See Earl Grey, Parliamentary Government and Reform (chap. iii.).
 
 xxi THE EXECUTIVE 411 
 
 far as their cost falls on the national treasury, be under one 
 supreme control from a financial point of view ; in order 
 that the demands made by each on the public purse may 
 be duly considered in relation both to the demands of all 
 the rest and the state of the public resources. It does not, 
 however, necessarily follow that this control should be 
 vested in an executive organ : indeed, as the legislature is 
 the ultimate money-granting organ, it seems obvious that 
 the estimates of expenditure and supply for the year or 
 any other period for which taxation may be determined 
 should be prepared by a committee of the legislature ; and 
 that this should supervise, from an economic point of view, 
 the organisation and working of the executive departments. 
 But such supervision is necessarily difficult and delicate, and 
 its effective performance requires great knowledge of details, 
 concentrated labour, and continuous experience : and perhaps 
 we can hardly expect to find these qualifications in a finance 
 committee of an assembly periodically elected and thus 
 liable to be changed at short intervals to an indefinite extent 
 unless it is aided by a permanent executive department, 
 such as the Treasury is in England. 1 Hence it seems 
 probable that the best result will be attained in respect of 
 economy and efficiency together, if the estimate of necessary 
 or desirable expenditure, and the proposals for obtaining 
 funds to meet it, are primarily made on the responsibility of 
 a supreme executive body or individual, representing all the 
 departments. 
 
 I shall accordingly assume that in a unitary state such 
 as we are now considering 2 all or the most important 
 permanent departments of centralised executive business 
 will be under the supreme direction of one individual or 
 body, to whose decisions the heads of departments and their 
 subordinates will conform : and I shall refer to this depositary 
 of the supreme executive power as the " supreme execu- 
 
 1 I do not mean to affirm that the English Treasury, as at present 
 organised, possesses the required qualifications in an adequate degree. 
 
 2 The deeper division of governmental functions that characterises a 
 composite State and its possible effects on the organisation of the executive 
 will be considered later (Chap. XXVI.).
 
 4 I2 ELEMENTS OF POLITICS CHAP. 
 
 tive " or where there is no danger of ambiguity " the 
 executive." 
 
 2. But before we inquire how this " supreme execu- 
 tive " is to be constituted and appointed, it seems desirable 
 to obtain a general view of the organisation suitable to the 
 whole body of officials employed in executive work ; con- 
 fining ourselves to the work that belongs to the centralised 
 executive, and leaving the consideration of local executive 
 organs to a future chapter. As we have just seen, the 
 whole executive business will tend to be divided into a 
 number of branches whose interdependence at ordinary 
 times will often be slight. In some cases it may be neces- 
 sary, for economy of highly skilled labour, to place two or 
 more of such naturally separate branches under one man- 
 agement, even as regards its ordinary routine. But the 
 general aim of a rational distribution of executive work 
 will clearly be to place under a common management, in 
 each department, such portions of public business as have 
 naturally a close connection, either because the efficient 
 performance of one such portion of business is impossible if 
 other portions are performed inefficiently or on independent 
 plans, or because the experience gained in the manage- 
 ment of one portion of the business will tend to render the 
 managers more competent to deal with another portion. 
 And in the most important departments this natural group- 
 ing of business appears to be now carried out in modern 
 States generally. 
 
 Assuming then that the work in each of the depart- 
 ments with which we are concerned requires unity of 
 management for its effective performance, let us consider 
 generally how the officials employed in the work should be 
 appointed, and in what relations they should stand to each 
 other. We may begin by observing that the line between 
 "service of government" and ordinary civil obedience is 
 not to be sharply drawn. As we have seen (Ch. XI. 2) 
 it should be held generally incumbent on the governed to 
 perform occasional services of a personal kind, in aid of the 
 functions of government such as giving evidence in courts
 
 xxi THE EXECUTIVE 413 
 
 of justice and otherwise assisting in the discovery of crime, 
 giving information for statistical purposes, etc. ; and in 
 crises of defensive war or civil disorder all who are capable 
 of bearing arms may be required to undertake more serious 
 exertions and risks. Again, the skilled labour of profes- 
 sional men not regularly employed by government lawyers, 
 physicians, men of science, artists may be occasionally 
 required for special governmental purposes. In the present 
 discussion, however, it will be convenient to leave out of 
 account these occasional services, and only to consider the 
 case of the regular employees of government. And we may 
 further limit our consideration to such officials as have or 
 are not unlikely to have some share in the function of 
 deciding or advising how the powers entrusted to the 
 executive are to be used; as distinguished from persons 
 who, in the ordinary course of things, will have merely 
 mechanical or menial or clerkly duties, or the actual 
 exercise of coercive force in obedience to orders. 
 
 Confining ourselves, then, to the higher class of execu- 
 tive functions to which the term " governmental " would 
 ordinarily be restricted we may lay down that, as a 
 general rule, the organisation appropriate to executive work 
 must be essentially different from that which has been 
 recommended for the legislature. In constructing the 
 organ for determining changes in the ordinary law of the 
 State, designed to be permanent, so far as this term is 
 applicable in a progressive community, I have deemed 
 it primarily important to provide that the complex and 
 varied interests and needs of the different sections of the 
 community shall be adequately discussed and duly regarded 
 in the final legislative decisions. For this purpose it 
 seemed desirable to constitute as the whole or an import- 
 ant part of the legislature a numerous body of persons 
 having equal voting power, elected and removable at short 
 intervals by the citizens at large. The executive depart- 
 ments, on the other hand, are mostly occupied with the 
 continual accomplishment of particular effects, in accord- 
 ance with prescribed general rules, and for the attainment
 
 4 I4 ELEMENTS OF POLITICS CHAP. 
 
 of some definitely prescribed end of public utility. Accord- 
 ingly, executive business may be assumed to have so much 
 general resemblance to ordinary private business as to 
 render it desirable that the details of the work in each 
 department should be carefully portioned out among sub- 
 ordinates arranged in various grades and classes ; and that 
 these subordinates should loyally obey the direction of a 
 single head, or of a body of persons sufficiently small to be 
 able to deliberate easily and rapidly and take prompt and 
 sometimes secret decisions. Hence popular election seems 
 generally undesirable as a mode of appointing even the 
 highest grade of subordinates ; partly because it would 
 tend to give the elected official too independent a position : 
 partly because the electors would not ordinarily be good 
 judges of the special qualifications required for the different 
 kinds of work. We may also assume that these posts 
 should not be hereditary or purchasable ; since neither 
 birth nor wealth alone affords an adequate guarantee of 
 the requisite qualifications. It would seem, then, to be, as 
 a rule, desirable that subordinate members of the executive 
 should be appointed by official selectors. 
 
 Further, we may assume that the work of such sub- 
 ordinates, if continuous and laborious, will like most kinds 
 of private industry in civilised society be most efficiently 
 performed if the main energies of the workers are absorbed 
 in it ; and that it will therefore generally require pecuniary 
 remuneration. We can hardly expect that even the higher 
 subordinate posts, involving continuous professional labour, 
 can be made so attractive to men of independent means by 
 the honour and power attached to them that they will be 
 adequately filled if unpaid: though the superior dignity of 
 public business, and a judicious distribution of marks of 
 honour in reward of meritorious service, may enable the 
 State to purchase the skilled labour it requires at a lower 
 price than private employers would have to give. I shall 
 also assume that the services here considered are voluntary. 
 The cases in which there seem to be adequate reasons for 
 making it compulsory to render personal services to Govern-
 
 THE EXECUTIVE 415 
 
 ment are chiefly two : viz. (1) where it is important to 
 keep such services out of the hands of a special professional 
 class, (2) and where they cannot be obtained in sufficient 
 abundance and adequate quality by the method of free 
 contract, except by an expenditure of money which would 
 be a greater burden on the community than the general 
 obligation of rendering such services. The services of jury- 
 men are commonly considered in England to come under 
 the first head : an example of the second case and, as some 
 think, of the first also may be found in the conditions of 
 military service in the ranks in leading European states. 1 
 Neither of these reasons, however, appears to be applicable 
 to the ordinary civil service of the central executive or to 
 commissions in the military service ; while we may assume 
 that the special aptitudes and dispositions required for 
 these posts are more likely to be obtained if the work is 
 freely chosen by the workers. 
 
 3. It remains to determine the manner in which the 
 official selection by free contract should be made : taking 
 for granted that the selection should be solely determined 
 by evidence of aptitude. 
 
 If wrong motives could be excluded, it would seem best 
 that the appointment to any vacancy should be left to the 
 unrestricted choice of the superior official responsible for 
 the management of the branch of work in question ; as 
 being the person likely to know most precisely the kind of 
 aptitudes required, and to feel most keenly the bad con- 
 sequences of a mistaken appointment. And in many cases 
 I do not doubt that this mode of selection would lead to 
 the best attainable results. But in the present condition 
 of average social morality and public spirit, there must be 
 admitted to be a serious danger that the interest of the 
 heads of departments in subordinate posts may not be 
 sufficiently direct and strong to secure that their patron- 
 age will not be used to provide for relations and gratify 
 friends. This is to some extent a cause of inefficient work 
 in private businesses, and is likely to be much more oper- 
 1 See Chap. XXIV. 5, and Chap. XXXI. 7.
 
 416 ELEMENTS OF POLITICS CHAP. 
 
 ative in public departments, in which the personal claims of 
 political partisans cannot fail to be superadded to those of 
 kinship and private intimacy ; while the selector's interest 
 in the efficient working of the department cannot ordinarily 
 be equal to that which private employers of capital have 
 in the working of their businesses. The danger will be 
 greatest as regards the lowest grade of the appointments 
 that we are considering, which will ordinarily be filled by 
 persons not previously employed in the service; especially 
 as, with a view to their ultimate efficiency it will be gener- 
 ally desirable that they should be appointed young. In 
 this case the large number of the appointments to be filled, 
 and the necessarily low standard of qualification to be 
 applied, will tend to make the business of selection if 
 conscientiously performed a laborious and difficult one ; 
 while at the same time the importance of a good selection 
 will be less strongly felt than in the case of the higher 
 appointments. To meet this danger it seems generally 
 expedient that the candidates for entrance into any branch 
 of official work, requiring intellectual qualifications that 
 can be effectively tested by examination, should be sub- 
 jected to an appropriate examination, conducted by a board 
 of examiners independent of the department. The most 
 controverted question is, whether such an examination 
 should merely secure a standard of efficiency, leaving to 
 the head or manager of the branch of work in question 
 free choice l among the candidates who are declared to 
 come up to the standard : or whether it should be com- 
 petitive, and altogether determine the selection. If the 
 former plan is adopted, opportunity is left for the selecting 
 official to secure that the recipient of the appointment 
 possesses, in some degree at least, such qualifications for 
 his post as cannot be adequately tested by examination ; 
 and it may be assumed that this result will be to some 
 extent attained. On the other hand, it is also to be ex- 
 pected that personal influences of the kind before mentioned 
 
 1 Whether the choice is exercised before or after a merely qualifying 
 examination, is not of fundamental importance.
 
 xxi THE EXECUTIVE 417 
 
 will partly determine the selection, and the expectation of 
 this will probably tend to reduce materially the number 
 and average abilities of the candidates who are conscious 
 of not possessing such means of influence : so that the 
 standard of what I may call examinable qualifications in 
 the persons appointed must be expected, generally speaking, 
 to be materially lower than on the competitive system. 
 
 A balance between these different advantages and dis- 
 advantages cannot, I think, be struck without appealing to 
 specific experience ; and it is not unlikely to vary consider- 
 ably with the varying nature of the work in question. I 
 observe that some writers as, for instance, J. S. Mill 
 consider competitive examinations " absolutely necessary." 
 On the other hand, the German civil service which German 
 writers, not conspicuously blinded by patriotism, confidently 
 affirm to be the most efficient in Europe is entered by a 
 non-competitive examination : but it is to be observed that 
 this examination is not the sole guarantee of the training 
 of these officials ; they are required, generally speaking, to 
 have gone through a prescribed school -course terminated 
 by an examination, and a course at a university or some 
 similar institution. 
 
 Speaking generally, it seems safer, in the present state 
 of average morality in European countries, to decide for a 
 competitive as against a merely qualifying examination 
 as the only generally trustworthy protection against the 
 influence of political partisanship. This may, of course, 
 at a particular place or time, be adequately excluded by 
 public opinion : but it is hardly prudent to rely on the 
 moral sanction only. It is, however, quite possible that some 
 intermediate plan of selection, involving an examination 
 neither purely competitive nor merely qualifying, may be 
 found to be on the whole the best. 1 In any case a period 
 
 1 One intermediate plan is to select periodically, by open competition, a 
 larger number of candidates than is likely to be required to fill the vacancies 
 occurring before the next examination, and to leave selection within this 
 number free to the heads of departments. Another plan is to require nomina- 
 tions to be made by the latter, considerably exceeding in number the number 
 of the vacancies, and to make the selection among the nominees competi- 
 
 2 E
 
 4 i8 ELEMENTS OF POLITICS CHAP. 
 
 of probation will be desirable, at the close of which a novice 
 who has been found inefficient may be discarded without 
 grave hardship. 
 
 In the case of the higher subordinate appointments in the 
 different offices the important qualifications are to a great 
 extent such as cannot be adequately tested by external 
 examination. Here, however, a customary limitation on the 
 discretion of the selecting official is commonly imposed by the 
 claims of existing employees. And since, generally speaking, 
 the most important qualifications for the higher posts are 
 such as tend to be both acquired and manifested in the per- 
 formance of the duties of lower posts, it will be usually 
 expedient that the higher posts 1 should be filled up by 
 promotion from the occupants of the lower : not only because 
 these latter will generally tend to have the fitness imparted 
 by experience, but also because the prospect of promotion 
 will tend to make them both more efficient while occupying 
 the lower posts, and better qualified for the higher. Still 
 it seems expedient that mere seniority should not give 
 even a customary claim to promotion to posts where any 
 important intellectual qualifications are required. In such 
 cases it seems best that the head of the department or 
 other responsible superior official should have a free choice 
 among duly qualified persons : since, in the case of appoint- 
 ments of this class, the grave and manifest responsibility 
 resting on the official selector, combined with his personal 
 interest in getting able assistance, will be a fair security 
 against misuse of his discretion, provided that his duty of 
 appointing for efficiency alone be clearly laid down. It is 
 especially important that for any appointment requiring 
 faculties or special knowledge for which the ordinary work 
 in the department gives no scope, the selection among 
 outsiders should be customary as well as legal. 
 
 4. In the performance of the higher functions in any 
 
 tive. Of these two plans the former seems preferable, since selection after 
 competition is likely to be more carefully performed than selection before 
 competition. 
 
 1 I am not speaking of the headships of departments, which will be con- 
 sidered later.
 
 THE EXECUTIVE 419 
 
 department a clear division and concentration of responsi- 
 bility should be a prominent aim : at the same time, in 
 departments where the extent and complexity of the work 
 render it expedient to divide its ordinary management 
 among several superior officials, it is obviously desirable that 
 before decisions of importance are taken there should be 
 consultation among the persons who are managing different 
 parts of an organisation for a common end. We are thus 
 led to the question, whether the ultimate control in any 
 department should be entrusted to an individual or to a 
 board or council. The former arrangement tends to have the 
 advantage in energy and decision of management, and also, 
 by securing undivided responsibility, it increases the effective- 
 ness of the criticism directed on the department by public 
 opinion or by the legislature : the latter tends to secure 
 greater circumspection, and a more complete, many-sided, 
 and impartial examination of the considerations relevant to 
 any question. Perhaps we may distinguish between different 
 kinds of executive determinations ; and decide, in the first 
 place, that the assent of a council should be ordinarily 1 
 necessary to the validity of any important general regulations 
 that affect the interests of citizens other than the servants of 
 Government, in view of the affinity between such regulations 
 and laws. At the same time, it seems generally best that a 
 department should have an individual head, who should be 
 solely responsible for the most important appointments and 
 for other particular decisions ; but in cases of important and 
 difficult work, it may be expedient in order to obtain the 
 greatest possible advantage from undivided responsibility 
 without losing the safety that is proverbially held to reside 
 in a multitude of counsellors to appoint along with an 
 individual head of the department a council which the head 
 is bound to consult on certain questions: so that the ultimate 
 decision is left entirely to the individual head, but can only 
 
 1 The requirement may be unnecessary where the regulation in question 
 had already been adequately deliberated on by some other council or assembly, 
 e.g. in matters decided by local governments subject to the approval of a 
 central department. Also in war, or other crises, the need of prompt and 
 decisive action may render it expedient to entrust larger powers to individuals.
 
 420 ELEMENTS OF POLITICS CHAP. 
 
 be taken after he has heard the opinions of responsible 
 experts. The individual responsibility of the latter might 
 at the same time be increased by allowing or even 
 requiring each member of the council to record his opinion 
 and the reasons for it in a document capable of being pro- 
 duced at any future time. This plan, however, should only 
 be adopted in cases where the reasons that ought to influence 
 decision are such as ought to be and would be written 
 down under the conditions supposed : and it is liable not to 
 work effectively if the councillors are dismissible at pleasure, 
 or appointed merely for a limited period with possibility of 
 reappointment : as they may then have too strong an induce- 
 ment not to press their dissent from their chief. 
 
 5. This leads us to the general question of the con- 
 ditions of tenure of subordinate offices of the executive, which 
 presents some difficulty. It seems especially important 
 for the State to give to its employees as much security 
 of tenure as can be reconciled with its need of loyal and 
 efficient work ; because they are deprived of the vague 
 chances of rising to wealth by ability which compensate for 
 instability of employment in many branches of private 
 industry. If possible, therefore, the conditions of tenure, 
 ordinarily attainable after adequate probation, should be such 
 as to give practically complete protection against arbitrary, 
 oppressive, or partisan dismissals ; while allowing dismissal 
 for crime or disgraceful conduct or serious breach of official 
 duty, and also for such incompetence as would in an average 
 man imply blameworthy neglect. A milder degree of in- 
 competence in the lower ranks of the service might be left to 
 the natural penalty of non-promotion ; while in the higher 
 grades a carefully-arranged system of pensions or "half- 
 pay " l would render it possible to take or keep important 
 tasks out of unfit hands, while securing from financial ruin 
 the individuals passed over. If adequate security can be 
 attained without legal limitations on the right to dismiss, 
 
 1 By "half-pay" is meant a portion of the normal salary of an official, 
 varying in amount according to his rank in the service which is secured 
 to him independently of employment.
 
 THE EXECUTIVE 421 
 
 there will probably be a gain in respect of efficiency ; as 
 there are certain kinds of serious incompetence and latent 
 insubordination which are hard to prove before an independ- 
 ent tribunal, though they are grave drawbacks to the 
 efficiency of an organisation that has to do difficult and 
 delicate business. Hence, where public opinion and the 
 established traditions of the service effectually exclude 
 partisan appointments and dismissal, a legal tenure " during 
 pleasure " of the head of the department, practically under- 
 stood to be a tenure " during good behaviour," has much 
 to recommend it. On the other hand, in certain states of 
 political feeling and habits, protection more definite than a 
 mere understanding may be necessary for adequate security 
 of tenure. 
 
 Moreover, the danger ought not to be ignored, that an un- 
 scrupulous chief may use his power of dismissal to intimidate 
 his subordinates into rendering services, to himself or to his 
 party, that they ought to refuse. The subordinate's duty is, 
 of course, only to obey such orders as the superior can legally 
 give : at the same time, it would be unreasonable to require 
 a subordinate to set his judgment against that of his official 
 superior in any case in which the legality of the order 
 appeared to the former merely doubtful : and even where its 
 illegality would hardly be doubtful to an unbiassed mind, 
 the subordinate's habit of official loyalty must be admitted 
 as an extenuation for the offence of carrying out the order. 
 It is therefore important not to add so strong a weight of 
 self-interest on the side of blind obedience, as must be added 
 if the subordinate's refusal to obey would involve a serious 
 danger of professional ruin. Against this danger also public 
 opinion may, at certain times and places, be a sufficient 
 protection : but, on the whole, it seems generally safer to 
 provide that subordinate executive officials who have attained 
 a certain rank shall not be simply dismissible from the service 
 by the head of the department alone, without the opportunity 
 of appealing to some independent tribunal, which shall finally 
 judge whether such dismissal has been deserved. There is 
 less danger in leaving to the head of a department the power
 
 422 ELEMENTS OF POLITICS CHAP. 
 
 of compelling a subordinate to retire on half-pay or with an 
 adequate pension ; and in the case of officials employed in 
 posts of much responsibility and importance, the want of a 
 power of summary removal may be the cause of grave evils. 
 
 6. It remains to consider the appointment, control, 
 and dismissal of heads of departments. We have already 
 seen that the undivided responsibility of the head of a 
 department as such cannot properly extend to questions, the 
 decision of which, though they arise in his department, will 
 materially affect the operations of other departments also. 
 On these matters the ultimate decision must be pronounced 
 either by some supreme governing individual, whether 
 distinct from or selected among the heads of departments, 
 or by some supreme council of which they either do or do 
 not form part ; and even questions that fall strictly within 
 any one department will, if exceptionally important, be 
 naturally reserved for this supreme executive. If, however, 
 the supreme executive power is to be vested in a council, it 
 will be more likely to possess the requisite knowledge and 
 grasp of current affairs if it includes the principal heads of 
 departments : though it may be desirable to combine with 
 these other persons of political experience, who being free 
 from the burden of detailed executive work, may concentrate 
 their attention on difficult questions of general policy. Such 
 a council according to the general view that we have taken 
 of the organ adapted to executive functions should not 
 be a numerous body. 1 This council, again, will need a 
 chairman, into whose hands a general supervision of execu- 
 tive business will naturally fall ; and to whom it will be 
 convenient to give enlarged powers of control, whenever 
 frequent and prompt decisions are required to ensure the 
 effective co-operation of different departments. On the 
 other hand, if the supreme executive power is vested in 
 an individual, a council of this kind will be needed to 
 advise him. 
 
 The important final question, then, to which we are led 
 in our process of constructing the executive organ from the 
 
 1 This point will be further argued in the next chapter.
 
 THE EXECUTIVE 423 
 
 bottom upwards, would seem to be this : should the supreme 
 control be in the hands of a council or " Cabinet," composed 
 mainly of the principal heads of departments, with a chair- 
 man whose powers vary at the discretion of the Cabinet, or 
 in the hands of an individual to whom such a cabinet 
 serves merely as a consultative council ? The answer seems 
 to depend on considerations broadly similar to those that 
 we have already had to balance in dealing with the 
 organisation of particular departments ; except that in the 
 case of the Cabinet the consideration of " undivided re- 
 sponsibility " becomes less important ; since, in dealing 
 with high matters of policy, even if responsibility is equally 
 diffused among all the members of a cabinet, the burden 
 resting upon each member appears sufficiently heavy. Still, 
 there would doubtless be important advantages especially 
 at crises in placing the whole business of administration 
 under the direction of a single mind ; provided there is a 
 fair prospect that this mind will be really able to grasp 
 and master it effectually. The probability of this is likely 
 to vary with the size of the State, and the extent and 
 complexity of governmental business : but perhaps we may 
 assume, in the case of such a State as England, that the 
 effective management of any one important department will 
 demand the concentrated energy of a man of first-rate 
 ability ; and if so, it would seem that only a man of very 
 rare talents and industry will be able to maintain so much 
 acquaintance with the working of different departments as 
 to be safely trusted with an overruling decision in all cases. 
 And if such a man has the gifts that would, under any 
 system of appointment by merit, bring him to the head of 
 the government, he may be expected, where a Cabinet is 
 formally supreme, to acquire prominent weight in it, and 
 even a kind of informal dictatorship at any crisis that 
 specially requires individual rule. On the other hand, if 
 no such rare genius is forthcoming ; and if, therefore, any 
 available head of the whole executive is likely to have, at 
 best, little more than the average ability of the head of a 
 leading department, probably more harm than good would
 
 424 ELEMENTS OF POLITICS CHAP. 
 
 result from giving him the power of finally deciding all 
 important executive questions : as he would be liable to 
 intervene disturbingly, with inferior insight, in each depart- 
 ment in turn, when its business became specially interesting, 
 and when, therefore, it was probably in special need of 
 consistent as well as skilful treatment. 
 
 In any case, in order to maintain continuously the 
 concentration of responsibility in each department, which 
 we before saw to be desirable, the intervention of the 
 supreme cabinet or individual in deciding any matter 
 should not be held to relieve the head of the department 
 of his responsibility for the decision, in the same way 
 as the order of the head of the department relieves his 
 subordinates of responsibility. In the latter case the sub- 
 ordinates remain responsible, of course, for the legality of 
 what they do under orders, but they cease to be responsible 
 for its policy : the head of the department, on the other 
 hand, should be held always responsible for the policy of 
 the whole exercise of executive discretion in his department : 
 it should therefore be his duty to resign, if important de- 
 cisions, of which he strongly disapproves, are passed by the 
 Supreme Executive. Hence, it may be observed, if the 
 heads of departments are chosen within the service, it is 
 important to provide that they should have the right of 
 returning to the posts previously held by them, or to others 
 of equal dignity and salary: since, otherwise, the uncertainty 
 of the tenure of a headship may prevent the fittest man 
 from accepting it. But, as I shall explain in the next 
 chapter, this question does not arise under the system of 
 Parliamentary government, as ordinarily worked. 
 
 The question of resignation leads naturally to that of 
 appointment and dismissal of heads of departments : which 
 requires all the more careful consideration, because, as we 
 shall see, the distribution of executive power within the 
 Cabinet partly depends on the answer given to it. It seems 
 clearly important that there should be an effective means 
 of rapidly removing from their posts officials entrusted with 
 extensive powers, if they should prove unfit. This may be
 
 xxi THE EXECUTIVE 425 
 
 provided for either by appointment for a short fixed period, 
 or by a tenure terminable at pleasure by some supervising 
 authority. The advantage of the former method is that it 
 is practically easier as being a less violent measure not 
 to re-elect an unfit official than to remove him : on the 
 other hand, an official irremovable for a fixed period may do 
 much harm at a crisis, if, while palpably incompetent, he 
 is so obstinately self-satisfied that public opinion cannot 
 force him to resign. In either case we have to settle who 
 is to pronounce on the fitness or unfitness of the head of a 
 department, whether for purposes of appointment only, or 
 for both appointment and dismissal. It would seem that it 
 must be either the supreme executive council or its head, 
 or the legislature, or the citizens at large. Popular election, 
 however, seems hardly more adapted to secure the special 
 qualifications required for good administration in headships 
 of departments than in subordinate posts : l the choice, 
 therefore, may be taken to lie between appointment by the 
 legislature and by the supreme executive. The advantage 
 which the former arrangement would give of securing 
 harmony between legislation and administration, and its 
 attendant drawbacks, will be considered in the next chapter : 
 but if we merely regard efficiency, it seems clear that the 
 majority of elected legislators are not likely to be so well 
 qualified as the supreme Executive 2 to select the most 
 efficient heads of departments, or to dismiss them with 
 thorough grasp and sound judgment of the evidence of 
 their unfitness. At the same time, to give the power and 
 
 ! I am not prepared to affirm with J. S. Mill (Representative Government, 
 chap, v.) that "numerous bodies never regard special qualifications at all." 
 But we may perhaps agree with him in holding that " there is no act which 
 more imperatively requires to be performed under a strong sense of individual 
 responsibility than the nomination to employments," and " scarcely any act 
 respecting which the conscience of the average man is less sensitive." 
 
 2 I am not here considering the case of a legislative assembly that actually 
 undertakes the business of administration, and assumes in fact supreme 
 executive powers. I shall argue in the next chapter that such an assembly 
 is not likely to perform executive functions well : but the assumption of 
 such functions, in a regular and continuous way, would doubtless render it 
 less unfit to appoint snch managers of executive departments as it would 
 require.
 
 426 ELEMENTS OF POLITICS CHAP. 
 
 responsibility of dismissing individual heads of departments 
 to the Cabinet as a whole, would promote internal discussions 
 and cabals tending to impair its harmonious working : more- 
 over, this method of appointment could hardly be satisfactory 
 in case a far-reaching change of policy should be required. 
 There seems therefore to be a decided advantage in giving 
 both the power of appointment and assuming dismissibility 
 of dismissal to an individual head : and this must greatly 
 tend to increase his preponderance in the Cabinet, even if 
 he has not formally more than a chairman's position. 
 
 7. We have now to observe that the decision of the 
 questions discussed in the preceding section must practically 
 depend to a large extent on the relation of the executive to 
 the legislature. Where the tenure of office of the Cabinet 
 as a whole is not for a fixed period but is terminable at any 
 time by the majority of a representative assembly, the actual 
 distribution of power among members of the Cabinet can 
 hardly fail to be largely determined by their respective 
 influence in the legislature and in the country. This may be 
 illustrated by the case of England ; where the most important 
 executive questions are practically l decided by a governing 
 Cabinet whose head, the Prime Minister, under ordinary 
 circumstances, practically appoints the other members of the 
 Cabinet, and other heads of departments, summons Cabinet 
 meetings and guides their deliberations. These functions 
 naturally tend to give a special weight to his opinion in 
 Cabinet discussions : and this weight is increased by the fact 
 that his resignation would certainly cause a dissolution of 
 the Cabinet, whereas the resignation of any other member 
 would not necessarily have this effect. 2 At the same time, 
 as all members of the Cabinet are equally responsible for its 
 decisions, and as in all cabinet appointments the Prime 
 Minister is practically compelled to recognise the claims of 
 influential members of his party in the legislature ; it 
 
 1 I say " practically," because its decisions are not formally binding : the 
 law of the constitution knows nothing of the cabinet. 
 
 2 Of course the dissolution of the cabinet might be immediately followed 
 by a reconstruction of the same elements ; but reconstructions are un- 
 certain.
 
 THE EXECUTIVE 427 
 
 seems an exaggeration to say that " power and responsibility 
 are concentrated in the hands of " l the Prime Minister. 
 At any rate, so far as this is actually the case, this 
 monarchical result must be attributed not so much to his 
 position as practical head of the executive, but rather to his 
 predominant influence in the legislature and the country : 
 and the extent to which the statement is true would seem 
 to vary considerably, as the relative popularity of prime 
 ministers and their colleagues varies. 
 
 8. In what I have just said of the English type of 
 government I have made no reference to the hereditary 
 monarch, whose formal supremacy over the heads of execu- 
 tive departments is indicated by the familiar term " minister," 
 by which the latter are best known. As will be presently 
 explained, 2 this is not because I regard the functions of the 
 hereditary monarch, in a country possessing representative 
 institutions fully developed, as trivial or unimportant. But 
 I take it to be undeniable that in our Constitution, as now 
 established by the tradition of at least more than half a 
 century, the general direction of the policy of the English 
 executive is in the hands not of the hereditary monarch, 
 but of a cabinet presided over by a prime minister, who, so 
 long as he retains the confidence of the majority of the 
 representative assembly, and of the majority of the electorate, 
 is not practically removable by the monarch. And the same 
 may be said of some at least of the Continental States which 
 (for the most part recently) have adopted constitutions framed 
 on the English model. 
 
 There is, indeed, a fundamentally different view of con- 
 stitutional monarchy, which was in the last century the 
 theoretically accepted English doctrine, and which is still 
 maintained by leading publicists 3 in Germany, and appar- 
 ently realised in the present German Empire. According to 
 this view, the true constitutional monarch must govern as 
 
 1 This is the view of Todd, Parliamentary Government, vol. ii. chap. iii. 
 p. 173 ; adopted also by a well-informed contemporary writer, Mr. H. D. 
 Traill, Central Government, in the "English Citizen " series. 
 
 2 See Chap. XXII. 4. 
 
 3 See, e.g., Bluntschli, Theory of the State, Book VI. ch. xv. xvi.
 
 428 ELEMENTS OF POLITICS CHAP, xxi 
 
 well as reign : and though, being irresponsible, it is necessary 
 as a protection against tyranny that he should be con- 
 stitutionally incompetent to perform any executive act 
 without the co-operation of a responsible minister, still it is 
 his duty in all such acts to exercise an independent judg- 
 ment on the advice offered by his ministers, and to keep 
 the reins of administration firmly in his own hands. 
 
 The advantages and drawbacks of this system will be 
 examined in the next chapter. My aim here is merely to 
 emphasise the essential difference as regards the constitu- 
 tion of the supreme executive between the German type 
 of government, which may be called Simple Constitutional 
 Monarchy, and the English type, which we shall find it 
 convenient to distinguish sometimes as "English Parlia- 
 mentary Government," sometimes as " English Constitutional 
 Monarchy," according to the point of view from which it is 
 regarded. The personal irresponsibility of the monarch, in 
 the English view, is essentially connected with comparative 
 powerlessness in current administration 1 it is held that 
 the ministers who have the sole responsibility for executive 
 acts must also have the decisive will in doing them ; whereas, 
 in the German view, legal irresponsibility is an essential 
 attribute of supreme power, which is held to be vested in the 
 monarch. It may be further observed that the " Constitu- 
 tional responsibility " of ministers is differently conceived in 
 the two views : in the German view it means primarily, 
 if not solely their liability to punishment for illegal or 
 corrupt use of their power: in the English view the most 
 important part of the meaning is, that ministers are liable 
 to dismissal if their policy is disapproved by a majority 
 of the representative assembly and of the electorate. This 
 difference is, of course, due to the essentially different rela- 
 tions between the executive and the legislature in the two 
 systems : which we will now proceed to examine further. 
 
 1 I shall explain in the next chapter why and how important 'powers still 
 remain to the monarch in the English form of government.
 
 CHAPTEE XXII 
 
 THE RELATION OF THE LEGISLATUKE TO THE EXECUTIVE 
 
 1. THE relation of the Supreme Executive to the Legis- 
 lative organ is one of the knottiest points in constitutional 
 construction ; it is variously conceived by different theo- 
 retical politicians who agree in accepting the principle of 
 popular control over legislation, and variously determined 
 in different modern states in which a popularly elected 
 assembly is actually a main element of the legislature. 
 Moreover, in England since the accession of the House of 
 Hanover, and in other West-European States more recently, 
 this relation has, to an important extent, been determined 
 rather by custom and opinion than by constitutional law : 
 and, as we shall see, there are reasons for thinking this 
 likely to be the case in future, in the type of polity histori- 
 cally developed in Western Europe. Hence, in any directly 
 practical consideration of this relation, special regard would 
 have to be paid to the constitutional traditions of the 
 particular country in question, and the actual state of 
 political thought in it. Accordingly, in the present treatise 
 I think it best not to attempt a single solution of the 
 problem ; but rather to characterise the chief methods of 
 dealing with it which experience has presented, so far as 
 they seem at all acceptable, to point out their advantages 
 and drawbacks, and to make some suggestions as to the 
 particular modification of each method which seems most 
 likely to be stable and efficacious. 
 
 In a previous chapter it was shown that the legislature, 
 
 429
 
 430 ELEMENTS OF POLITICS CHAP. 
 
 from the nature of its functions, must be, in a certain 
 manner and degree, supreme over the other organs of govern- 
 ment : since, as legislative, it has to lay down the general 
 rules which the executive and the judiciary, no less than 
 other members of the community, are bound to obey ; while 
 as the money -granting organ, it has complete control over 
 any fresh expenditure that either of the other organs may 
 require. Hence the most obvious and simple mode of 
 determining the relations between the legislature and 
 executive would seem to be that of complete subordination 
 i.e. that the supreme executive should be appointed by 
 the legislature, bound to carry out any resolution it may 
 pass, and simply dismissible at its will. In this way the 
 perfect harmony between the two organs, which is manifestly 
 conducive if not indispensable to efficient government, might 
 be easily and thoroughly secured. To attain this result, 
 however, it seems necessary that the legislature should 
 consist of a single body, capable of corporately deciding any 
 question brought before it by a simple majority of votes, 
 and not of two or more bodies, each of which can check 
 the rest : since otherwise the desired harmony would be 
 liable to be marred by a conflict among the bodies of which 
 the legislature is composed, sustaining a conflict between one 
 or more of these bodies and the executive. 
 
 This arrangement on the assumption that the single 
 legislative body is a numerous assembly, chosen at intervals 
 of a few years by the citizens at large l may be distin- 
 guished as Simple Parliamentary Government. Its sim- 
 plicity is an obvious and real merit : but the institution 
 has not been adopted by any modern state, and appears to 
 be open to very serious objections. The first of these is 
 the consideration to which J. S. Mill gives most weight in 
 favour of two legislative chambers, " the evil effect pro- 
 duced upon the mind of any holder of power, whether an 
 
 1 In Chap. XXVII. I shall consider whether the elected legislators should 
 be, in their turn, disniissible at will by their constituents. This is perhaps 
 the most natural arrangement according to one rather prevalent view of 
 representative government : but I do not think it would be a good arrange- 
 ment : and it seems more convenient to defer the discussion of it.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 431 
 
 individual or an assembly, by the consciousness of having 
 only themselves to consult. It is important that no set of 
 persons should be able, even temporarily, to make their sic 
 volo prevail, without asking any one else for his consent. 
 A majority in a single assembly, when it has assumed a 
 permanent character, easily becomes despotic and over- 
 weening " l if released from all external check on its power. 
 Further, an assembly that can dismiss the executive at 
 will must be expected to grasp, either occasionally or per- 
 manently, the supreme direction of the business of the 
 executive : if, as is not unlikely, its control were only 
 exercised in a fitful and irregular way, when any affair 
 reached a specially interesting crisis, its intervention would 
 be almost certainly ignorant and impulsive : while if its 
 control were of a more settled and regular kind, it would 
 practically become the supreme executive, and the govern- 
 ment would be liable to the disadvantages before noticed 2 
 that attend on the union of legislative and executive 
 functions in the same hands. And even apart from the 
 general objections to this cumulation of functions, it seems 
 improbable that a numerous assembly, whose members are 
 elected for a short period, would make a good supreme 
 council for the administration of current affairs : especially 
 where considerations of importance in deciding an adminis- 
 trative question could not be made public without detri- 
 ment to the community. This latter is most likely to be 
 the case in foreign affairs : and here further apart from 
 any need of secrecy there is reason for doubting whether 
 a representative assembly will be well qualified for manag- 
 ing wisely the external relations of the community. To 
 the consideration of internal affairs a truly representative 
 assembly is likely to bring at the lowest estimate of the 
 elector's faculty of choice an important and indispensable 
 element of the knowledge that a statesman ought to possess. 
 For in such a body the political needs and aspirations of 
 all the different sections of the community will find ex- 
 pression ; and what even comparatively unenlightened and 
 
 1 Representative Government, chap. xiii. - Chap. XIX. 7.
 
 432 ELEMENTS OF POLITICS CHAP. 
 
 half-instructed persons feel and want in such matters is 
 worth knowing ; they can at any rate tell us exactly where 
 the shoe pinches, and their experience may help us some- 
 what in finding a remedy. But in foreign affairs what the 
 ordinary members of any community desire is, for the most 
 part, the attainment of very vague and general ends peace 
 as far as possible, the respect of other nations, justice 
 according to their own view of it in any collision of in- 
 terests, and victory when they go to war : and the best 
 means of realising these often incompatible ends can only 
 be ascertained by a kind of study and experience different 
 from that which an average member of the representative 
 assembly can be relied on to possess. Again, in foreign 
 affairs especially when a nation is in keen competition 
 and danger of conflict with vigilant and energetic rivals 
 we require combinations and preparations for remote con- 
 tingencies, a power of concluding agreements with great 
 promptitude, and a stability and consistency of policy 
 which neither reason nor experience would lead us to 
 expect in a numerous rapidly- changing assembly. And 
 finally, as I before noted, what was said of the prima facie 
 natural supremacy of legislative over executive functions in 
 internal affairs applies much less in this other department : 
 since the external relations of a community are hardly 
 capable of being regulated by definite, stringent, and per- 
 manent general rules. If, then, to avoid the dangers of 
 disunited and conflicting directions at a crisis, it is im- 
 portant that the ultimate control of internal and external 
 executive functions should be in the same hands, we are led 
 strongly to the conclusion that it is undesirable to make 
 the executive the simple agent of the legislature. 
 
 2. If, however, in view of these considerations, we 
 suppose a large share of power such as the English 
 Cabinet possesses to be allowed by custom and opinion 
 to the supreme Executive, still remaining simply dismis- 
 sible at the will of the legislature, new drawbacks and 
 dangers present themselves; the drawbacks and dangers 
 of a Parliamentary Executive. I use this term to denote
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 433 
 
 the arrangement by which the headships of the most 
 important departments of the Executive are allotted to 
 leading members of the majority in the Legislature. It is 
 important to observe that this arrangement is not a neces- 
 sary consequence of the undisputed supremacy of Parlia- 
 ment : rather we may say that a parliament really govern- 
 ing, in the popular sense of the term i.e. really managing 
 current affairs would hardly make room for what I call a 
 Parliamentary Executive. If we suppose Parliament to 
 keep the control of current administration effectively in its 
 own hands dividing the determination of all important 
 questions between the assembly in full session and com- 
 mittees appointed for the different departments of work 
 it would only require further such executive heads as the 
 highest permanent officials in the English administration 
 now are ; persons of ability and experience, and often large 
 influence, but accustomed to carry out unquestioningly the 
 decisions of their parliamentary chiefs. Such permanent 
 heads would be obviously fitted to supply the element of 
 continuous special experience in which Parliament and its 
 committees would be likely to be wanting ; and, as this 
 kind of subordinate work would not offer an irresistible 
 prize to the parliamentary leaders, it would be natural to 
 keep the management of the executive departments, under 
 Parliament, in the hands of such permanent officials, chosen 
 for their qualifications for their special work, the leaders of 
 the dominant majority in Parliament taking the position of 
 chairmen of the respective governing committees. Under 
 these circumstances it would doubtless be difficult to pre- 
 vent parliament from being an avenue to the posts : but at 
 any rate it might be hoped that any member of parliament 
 appointed would have some claims to special fitness for his 
 post ; and when appointed he would give up his parlia- 
 mentary position. Appointments in the Executive would, 
 in short, resemble appointments in the Judiciary under the 
 present English system ; by which parliamentary lawyers 
 are often made judges, but a man ignorant of law could not 
 practically be made a judge, although a man ignorant of 
 
 2 F
 
 434 ELEMENTS OF POLITICS CHAP. 
 
 finance may be made Chancellor of the Exchequer. This 
 might, perhaps, turn out to be the least unsatisfactory- 
 plan for working simple Parliamentary Government, in spite 
 of the disadvantages inseparable from administration by a 
 numerous elected assembly. 
 
 But if, to avoid these disadvantages, large powers be 
 left to the supreme executive, the exercise of these powers 
 can hardly fail to be an object of the highest political 
 ambition, while at the same time the parliamentary 
 majority will naturally demand that they should be en- 
 trusted to persons who have its confidence. The chief 
 executive posts will therefore be filled by parliamentary 
 leaders, who, though they will be probably persons of 
 general intellectual force, are more likely to be distin- 
 guished for oratorical gifts and parliamentary tact than for 
 administrative talent. This is one disadvantage of a par- 
 liamentary executive ; another is that the prize thus offered 
 to parliamentary ambitions is likely to stimulate intrigues 
 and combinations for personal ends. The ministers will 
 thus be in constant danger of being thrown out of office by 
 such intrigues ; or from honest changes of political opinion, 
 whenever the majority supporting them in the legislature is 
 either small or naturally unstable from the multiplicity of 
 party divisions. 1 In view of these dangers, they will be 
 drawn to devote a large share of their attention to the 
 business of managing the legislature, and their energies are 
 thus likely to be distracted from their proper work. 
 
 3. In the modification of Parliamentary Government 
 which has gradually been developed in England, under the 
 forms of constitutional monarchy, the objections to a Parlia- 
 mentary executive are diminished by the power which the 
 executive possesses of dissolving parliament. In all cases 
 where this system is actually working, the legislature con- 
 sists of two chambers ; but it will be convenient for the 
 present to ignore the Senate or Upper Chamber ; and in so 
 
 1 I shall hereafter point out (Chap. XXIX.) as a merit of the two-party 
 system that it tends to reduce this danger, though it does not completely 
 get rid of it.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 435 
 
 doing we shall not diverge very materially from actual facts, 
 as this chamber has usually little share in the control exer- 
 cised by parliament over the executive. In this form of 
 Government the practical head of the executive is practically 
 though not formally selected by the majority of the repre- 
 sentative assembly, at least when the choice of this 
 majority is clear and decided ; while the other members 
 of the supreme Executive Council or Cabinet are also 
 leading members of the same majority (or persons of similar 
 views in the second chamber). But, when formed, the 
 Cabinet is not removable at the will of the representative 
 assembly that practically appointed its head : the executive 
 has by established constitutional custom the power of 
 dissolving the body by which it was indirectly appointed 
 or any subsequently elected assembly and causing a 
 new election. It is the recognised duty of the Cabinet 
 to resign office, unless it can obtain the support of the 
 majority of a representative assembly : and should it refuse 
 to resign after a vote of want of confidence, it would be 
 regarded as the constitutional right of the assembly and 
 the proper course under the circumstances to compel its 
 resignation by refusing to furnish supplies : l but the execu- 
 tive may always by a dissolution appeal to the electorate 
 from any particular assembly with which it may disagree 
 on any vital question of policy. In this way two results 
 are attained : there is normally a close harmony between the 
 Cabinet and the assembly, any breach in which tends to be 
 rapidly healed by a change in the personnel of one or the 
 other organ : while at the same time the two bodies 
 mutually check each other in a manner which tends to 
 remove from either the temptations that arise from the 
 consciousness of supreme power. If the representative 
 assembly could simply dismiss the Cabinet at any moment, 
 the latter might be compelled to watch its drifts of opinion 
 
 1 In England the resignation of ministers might also be compelled by 
 refusing to pass the annual Mutiny Act authorising the discipline required 
 for the army. But in the Continental adaptations of English constitutional 
 methods, Refusal of Supplies is generally recognised as the normal method 
 of enforcing parliamentary control over the executive.
 
 436 ELEMENTS OF POLITICS CHAP. 
 
 and gusts of sentiment with the same absolute subserviency 
 with which an Eastern vizier watches the whims and 
 humours of an individual. But when the executive has 
 the power of dissolving the assembly the case is altered : 
 first, because the majority in the representative assembly 
 can never be certain that it rather than the executive will 
 be supported by the nation ; and secondly, because an election 
 is usually a troublesome crisis in the parliamentary career 
 of a representative, which he has, therefore, a personal 
 inducement to postpone. Thus while parliamentary control 
 effectually checks any misuse of power by the executive, 
 which the parliamentary majority would disapprove, on the 
 other hand the power of dissolution enables the executive 
 to resist any caprices and vagaries on the part of the 
 legislature, which the majority of the electorate, if appealed 
 to, would disapprove ; and at the same time the possibility 
 of any prolonged conflict between the two is completely 
 excluded. 
 
 The essential features of this system are independent 
 of the existence of the hereditary monarch who, in most 
 countries under Parliamentary Government, formally appoints 
 the practical head of the executive. If the Prime Minister 
 in England, or any country that has adopted the English 
 type of " constitutional monarchy," were appointed directly 
 by the House of Commons, the whole business of govern- 
 ment might go on without any material change at least 
 in ordinary times. The question therefore arises how far 
 such an official as the hereditary monarch has come to be 
 is needed in a constitution of the English type, except to 
 maintain the continuity of constitutional development in a 
 country that has been more monarchically governed. At 
 present the hereditary monarch in such a constitution is the 
 highest representative of the executive on all ceremonial 
 occasions, and has to give formal assent to the most important 
 executive acts. He has a right to have full information as 
 to the grounds of all such acts, and to require them to be 
 discussed with him before his assent is given. But he has 
 not, according to the existing constitutional understanding,
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 437 
 
 a right to choose his ministers independently of Parliament, 
 or to impose his own policy on them : if there is an irrecon- 
 cilable disagreement in policy between him and them, the 
 monarch is bound to give way at least if their designs are 
 not illegal, and if they are supported by a majority of the 
 representative assembly and of the electorate. Let us con- 
 sider, then, how far it would be desirable to establish such a 
 hereditary monarch or an elected official having correspond- 
 ing functions in (say) an English colony that was carrying 
 out a peaceful separation from the mother country, and 
 equipping itself for perfect political independence. 
 
 4. In examining the effects of such an institution it 
 will be well to distinguish between the normal functions 
 of the monarch as it will be convenient to call him in 
 ordinary times, and his exceptional functions in relation to 
 actual or possible changes of government. Among the 
 former, if we are considering the actual social conditions 
 under which the English type of constitutional monarchy 
 exists in West-European states, we must certainly count 
 as important, from its effect on popular imagination, the 
 additional appearance of stability which the government 
 gains by the permanence of its formal head amid the 
 changes of ministries. The liability of these changes to 
 occur with disturbing frequency is one of the defects of 
 this form of government : and if it be said that the bad 
 effect of such changes on the work of government is rather 
 veiled than diminished by the unshaken permanence of the 
 hereditary monarch, we may fairly answer that to veil it is 
 to mitigate it ; owing to the practical importance of the 
 prestige of government, in producing a general sense of 
 confidence among the governed, and maintaining the habit 
 of willing obedience. It seems probable, however, that as 
 the political consciousness of a nation grows, and the 
 sentiment of loyalty to the State comes generally to take 
 the place of that personal feeling towards the (so-called) 
 " sovereign " which West-European communities have in- 
 herited from an earlier stage of development, this utility of 
 hereditary monarchy will diminish.
 
 438 ELEMENTS OF POLITICS CHAP. 
 
 But further, the mere permanence of the position of the 
 monarch, with the central and intimate acquaintance that 
 he tends to have with all governmental affairs, affords an 
 opportunity for an able man to acquire such political 
 knowledge and experience as ought to qualify him for 
 rendering valuable aid in the actual work of government. 
 Such aid, in ordinary times, would be given mainly in the 
 way of advice, which, in the last resort, the responsible 
 minister would have by constitutional usage a right to 
 reject. But wise counsel based on long experience, from 
 one superior in formal rank, is likely to have much effect on 
 the decision of questions which the responsible ministers 
 admit to be doubtful and difficult : and in fact though an 
 exact estimate is naturally unattainable it is commonly 
 believed that the counsels of monarchs of ability have often 
 been influential, even in States in which the present English 
 view of constitutional monarchy is fully accepted. 
 
 The function just described is one, in the exercise of 
 which a monarch, if able and energetic, may do much good ; 
 while, if stupid or weak and frivolous, he can do little harm, 
 except in the way of wasting time. The same cannot, how- 
 ever, be said of the power which the constitution actually 
 leaves to the monarch and which can hardly be withdrawn 
 without reducing monarchy to an empty ceremonial of 
 successfully opposing his will to that of his minister, on 
 any points which for any reason the minister is unwilling 
 to carry by threatening resignation. The exercise of this 
 power may indeed be highly salutary ; but it may also be 
 inconvenient and mischievous. It will tend to be generally 
 salutary, so far as it prevents measures that involve a 
 violation or straining of law, such as the majority of the 
 legislature would shrink from supporting, if challenged by 
 the monarch : or, again, corrupt measures, which might in 
 the ordinary course of things escape censure, but would 
 certainly meet with general disapproval, if exposed with all 
 their circumstances to the full glare of publicity. On the 
 other hand, the monarch's power is likely on the whole to 
 be mischievous, so far as the responsible minister has exer-
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 439 
 
 cised his judgment honestly within legal limits, and merely 
 gives way on minor points from a desire to gratify the 
 monarch ; or because it is his interest to avoid friction, 
 lest a decided aversion on the monarch's part may at some 
 future conjuncture prove an impediment to his ambition. 
 On the whole, we may say that if the monarch's power of 
 opposing up to the point at which the minister would 
 threaten resignation is kept in ordinary use, it is likely to 
 do more harm than good, though the harm will be of a 
 minor kind : if it is regarded as a reserve power to check 
 abuses, it can hardly fail to do more good than harm, and 
 the benefit may occasionally be considerable. 
 
 So far I have supposed that the disagreement between 
 the monarch and his minister does not lead to the resigna- 
 tion of the Cabinet. But even if the conflict is pressed to 
 this result, and if the Cabinet is supported by the majority 
 of the representative assembly, the monarch's power of 
 resistance is not necessarily at an end ; since he may appeal 
 from Parliament to the electorate, by dissolving the repre- 
 sentative assembly, provided he can find ministers willing to 
 take the responsibility of this measure. It is quite con- 
 sistent with the general scheme of English constitutional 
 monarchy that the monarch should have this power : and I 
 believe that according not only to law but to the generally 
 accepted constitutional understanding the monarch in 
 England is still held to have it : though it has not been 
 exercised since 1834. That is, the monarch would not act 
 unconstitutionally by dismissing his ministers, even though 
 they had the confidence of a majority in the representative 
 assembly, and appointing others, who would then dissolve 
 the assembly, in hopes of changing the balance of parties in 
 Parliament by a new election. Of course, if this hope were 
 disappointed the new Cabinet would have to resign at once : 
 in which case the monarch would incur the reproach of 
 having caused a troublesome and costly interruption of 
 political business with no useful result. Hence this power 
 is not likely to be used except when the monarch has strong 
 reason to think that the Cabinet and representative assembly
 
 440 ELEMENTS OF POLITICS CHAP. 
 
 together will be found in disagreement with the majority of 
 the electorate as well as with himself. And under these 
 conditions the exercise of such a power would probably be 
 on the whole beneficial ; although, according to the line of 
 reasoning adopted in the present treatise, it is not an un- 
 doubted gain, nor the main object of the representative 
 system, to secure that the executive and legislative organs 
 of government shall follow as closely as possible all change 
 in popular opinion and sentiment. 1 
 
 It is a different question whether the monarch should 
 have the right of refusing a dissolution when his Cabinet 
 wishes for one, in consequence of its disagreement with the 
 majority of the representative assembly. It is admitted 
 that the monarch in England and (I believe) in other 
 countries which have adopted the English type of govern- 
 ment actually possesses this power of refusal : i.e. he could 
 practically exercise it, without any breach of constitutional 
 custom, if the leaders of the majority in the representative 
 assembly were willing to form a ministry. And the exercise 
 of such a power is certainly compatible with the fullest 
 maintenance of ministerial responsibility, and cannot lead 
 to any conflict between the executive and the legislature: 
 moreover it can only be used to prevent not to cause a 
 troublesome disturbance of the course of political life. At 
 the same time, its advantage on the whole seems to me 
 doubtful : since the consequent uncertainty as to the Cabinet's 
 power of dissolution must tend somewhat to alter the balance 
 between the Cabinet and the legislature in favour of the 
 latter ; and it seems to me that under any form of parlia- 
 mentary government the executive is rather in danger of 
 being too weak than too strong. Also, the possession of 
 this power may tempt the monarch to give effect to a 
 preference for one party in the State : he can, for instance, 
 grant a dissolution when a Conservative Cabinet are at issue 
 
 1 See Chap. XXVII. It is further to be said that this power of dissolution 
 might be valuable in a crisis as a means of defeating the designs of an 
 ambitious minister, meditating a coup d'ttat. But it might equally be used 
 to promote revolution, either by an ambitious monarch aiming at an increase 
 of his power, or by a weak monarch worked as a puppet by others.
 
 xxii RELATION OF LEGISLATURE TO EXECUTIVE 441 
 
 with the House of Commons, and refuse it to a Liberal 
 Cabinet in the same situation : and such preferences are sure 
 to cause friction and discontent. 
 
 Finally : there are certain cases in which the monarch, 
 however fully he has accepted the principle of parliamentary 
 government, will have some substantial as well as formal 
 power of selecting his ministers. For instance, if the parlia- 
 mentary majority has no clearly marked leader, either from 
 political divisions within it or from equality of personal 
 claims, it is always possible that the monarch's selection of 
 a Prime Minister may be generally acquiesced in as a 
 tolerably satisfactory solution of a difficult problem, although 
 a different man would have gained the majority of votes in 
 the assembly. Again, though, under ordinary circumstances, 
 constitutional morality would prevent the monarch from 
 endeavouring to control the Prime Minister's choice of his 
 colleagues, this rule admits of exceptions : e.g. party ties 
 might lead a Prime Minister to recommend for office a 
 politician whose reputation was so bad, that it would be in 
 the monarch's power to refuse assent without incurring 
 popular disapproval. The existence of this occasional power 
 would seem to be a clear advantage, though not a very 
 important one. 
 
 I have analysed carefully the functions, other than 
 merely formal or merely consultative, of the English 
 constitutional monarch, because I think it important to 
 show exactly how much substantial power may be allotted 
 to him consistently with a complete acceptance of the 
 principle of Parliamentary Government. My conclusion is 
 that the exercise of these powers is likely to have, on the 
 whole, a good effect on the working of a parliamentary 
 executive ; though the benefits are balanced by not in- 
 considerable drawbacks. But, in any case, I do not conceive 
 that if these powers were withdrawn, the other utilities of 
 monarchy could be permanently retained. For if the 
 monarch's public actions were ever absolutely reduced to a 
 performance of merely formal and ceremonial duties, his 
 private counsels would soon come to be listened to with a
 
 442 ELEMENTS OF POLITICS CHAP. 
 
 merely formal respect, and as his real impotence would 
 become known the institution would lose the prestige 
 that renders it a source of stability. If constitutional 
 monarchy is to be retained as a permanent form of parlia- 
 mentary government, I am convinced that the monarch 
 must have at least as much real power as I have above 
 attributed to him. 
 
 5. It remains to be considered whether the official 
 who exercises these powers should attain his office by in- 
 heritance. Actually with the single l exception of France 
 the relation between the executive and the legislature 
 that I have been describing has never been established 
 in an independent state without a hereditary monarch as 
 formal head of the executive. And there are certainly 
 strong reasons apart from historical continuity for re- 
 taining this institution ; since hereditary succession affords 
 the best prospect of securing in the monarch due impartiality 
 in relation to current political factions ; and the impression 
 of stability, which is a valuable result of this permanent 
 formal headship, is likely to be aided by the influence over 
 popular sentiment which hereditary dignity now gives. 
 But, on the other hand, the ceremonial and sentimental part 
 of the monarch's utility seems likely to be only temporarily 
 needed in an age of transition : while, in view of the services 
 that he might render as a ddpot of experience and source of 
 counsel for transient ministries and occasionally in resisting 
 illegal or corrupt proposals, and in determining dissolutions 
 and selecting first ministers intellectual qualifications seem 
 to be required such as heredity can hardly be expected to 
 secure. On the whole, we may perhaps conjecture that if 
 the English form of parliamentary government should ever 
 be adopted in a modern state, otherwise than by the conces- 
 sion of a hereditary monarch, who retains his position while 
 sacrificing a portion of his power, it is hardly likely that the 
 formal headship of the executive would be made hereditary. 
 
 1 Moreover, the Parliamentary Government of the present French Republic 
 does not exactly realise the type above described, because in France the right 
 of dissolution can only be exercised with the consent of the Senate.
 
 xxii RELATION OF LEGISLATURE TO EXECUTIVE 443 
 
 Supposing that the functions of the English constitu- 
 tional monarch are to be given to an elected President, the 
 period for which he is elected should be long enough to give 
 the advantages of stability ; but not so long as to render it 
 difficult to avoid the drawbacks of senility, while electing a 
 statesman of ripe experience. 
 
 6. One important consequence of . the harmony that 
 the English system and indeed any system which includes 
 a parliamentary executive establishes between the execu- 
 tive and legislative organs, has yet to be noticed : viz. that 
 the Cabinet naturally has the initiative in all important 
 legislation. Composed as it is, entirely or mainly, of leading 
 members of the legislature, who as heads of departments 
 have at their command the most recent executive experience 
 of the working of existing laws, it is for some purposes 
 the best committee that could be appointed to frame new 
 laws ; l and the advantage of a single strong committee for 
 preparing legislative business has already been dwelt on. 
 In fact, this preparation of laws is so prominent and striking 
 a part of the function of the Cabinet in the English system 
 as actually worked, that probably many persons, if they 
 were asked to give a general account of the functions of 
 ministers, would put first and foremost the duty of framing 
 and carrying legislative measures. 
 
 The result at which we have thus arrived is historically 
 somewhat curious. On the one hand, in the English consti- 
 tution of the eighteenth century, the cardinal point noted 
 for eulogy by its admirer Montesquieu was the security for 
 freedom given by separation of powers legislative, executive, 
 and judicial. On the other hand, one of the most conspicuous 
 features of the actual working of the same constitution, in 
 the nineteenth-century phase of its development, is the union 
 of legislative and executive functions in the same hands. 
 The ministers whose functions according to constitutional 
 law are entirely executive have come to be practically also a 
 
 1 I do not, however, think it necessary or desirable that so much legis- 
 lative work should be thrown on the Supreme Executive as is actually 
 undertaken by the English Cabinet. See 10.
 
 444 ELEMENTS OF POLITICS CHAP. 
 
 committee appointed by the majority in the representative 
 assembly for the purpose of framing legislative measures : 
 while the House of Commons is constantly concentrating its 
 attention on its customary duty of modifying by criticisms 
 and suggestions the most important and interesting points in 
 the executive policy of the Cabinet, as well as its legislative 
 proposals. 
 
 7. The harmony thus secured between these two chief 
 organs of government is in itself an undeniable gain. But 
 it must be admitted to be purchased by serious drawbacks, 
 to a large extent similar to those of Simple Parliamentary 
 Government. In the first place, the advantages of division 
 of governmental labour tend to be lost in the fusion or 
 confusion of legislative and executive functions above 
 described ; ministers are liable to be distracted from their 
 executive duties by the work of preparing legislative 
 measures and carrying them through Parliament ; while 
 Parliament is tempted away from legislative problems by 
 interesting questions of current administration, in which, 
 especially in foreign affairs, it is liable to interfere to an 
 excessive extent. This evil is no doubt diminished by the 
 counter-check exercised on the assembly when the Cabinet 
 has the power of dissolution, but it is by no means removed : 
 to maintain harmony between the two organs, the executive 
 is continually led to adopt not what it considers on the 
 whole the best course, but the course which it regards as 
 most easily defensible in the face of parliamentary criticism, 
 or least likely to provoke it. The burden of legislative 
 work now laid on the Cabinet might no doubt be materially 
 reduced by a proper devolution of the details of legislation 
 on standing committees of the legislature, duly aided by a 
 Legislative Council or other permanent body of legal experts ; 
 but it would probably be difficult to lighten it sufficiently 
 so long as the present system of party government 1 is 
 maintained. 
 
 Again, the English type of " Cabinet Government "- 
 as Bagehot calls it shares, to a serious extent, in the 
 1 See Chap. XXIX.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 445 
 
 instability which we have recognised as a defect of Simple 
 Parliamentary Government. 1 The supreme executive is 
 liable to be upset at any moment by a breeze of popular 
 disfavour, if the dominant majority in the representative 
 chamber is either small or wanting in coherence : and in 
 the latter case it is also liable to be upset by a new com- 
 bination of parties in the chamber, aided perhaps by per- 
 sonal intrigues if the opportunity for the combination is 
 skilfully chosen, so that the newly -formed majority is not 
 reversed on an appeal to the country. Thus, the mere 
 uncertainty of tenure of office tends to render it very 
 difficult for the executive to adopt a far - sighted and 
 consistent policy. 2 
 
 Another important defect of this system is its tendency 
 to entrust the headship of the different departments of the 
 executive to persons who are not from a strictly executive 
 point of view experts. The Premier's choice of the heads 
 of departments is seriously limited by the connexion of the 
 Cabinet with the legislature. He is practically forced to 
 select them among the leading speakers of his party in the 
 representative assembly, in order that the defence of his 
 measures before the assembly may be as strong as possible. 
 Hence there is no adequate presumption that they will 
 possess even general administrative ability in a high degree : 
 still less that they will possess the special knowledge required 
 for particular departments. Nor will the prime minister 
 even be able to distribute them among the posts in the 
 
 1 See p. 434. 
 
 2 I ought perhaps to notice here a more remote risk of instability attach- 
 ing to the English form of Parliamentary Government, which is not found 
 in the simple form : viz. that the nominal head of the executive whether 
 hereditary or elected may be tempted to grasp at a real share of power, 
 corresponding to that which he formally possesses, and with this object to 
 intrigue against his ministers and endeavour to gain partisans and popularity 
 of his own. Parliamentary government, in the form of constitutional mon- 
 archy, rests only on custom and opinion : it could be gradually metamorphosed, 
 without any legal change, into simple constitutional monarchy, in which the 
 monarch selects his own ministers and has a decisive influence in determining 
 their policy : and the process of change whatever may be thought of its 
 results could not but be disturbing and weakening to the efficiency of 
 government.
 
 446 ELEMENTS OF POLITICS CHAP. 
 
 manner which would be best from an administrative point of 
 view : since he will have to take into account the relative 
 dignity of different posts and to make this correspond 
 to the parliamentary positions of the persons appointed. 1 
 It follows that especially when there are rapid changes of 
 ministry the heads of departments are liable to be persons 
 who are not really qualified for managing, and if well 
 advised do not attempt effectively to manage, the business 
 of their departments. Hence there is an element of truth 
 in the satire that represents Parliamentary government, under 
 the form of constitutional monarchy, as resulting in a ruler 
 who merely pretends to rule, assisted by ministers who 
 merely pretend to administer. 
 
 There are, however, important considerations on the 
 other side, which must not be overlooked. 2 It is 
 plausibly urged that, on the one hand, the special function 
 of the parliamentary head of a department, which a 
 permanent head could not so well perform, is to save 
 his office from the deadly disease of routine, to act as a 
 channel by which the useful part of outside complaints and 
 criticisms may be forced on the attention of the officials 
 who are too apt to despise them as uninstructed clamour : 
 while, on the other hand, so far as the outside clamour 
 is misdirected, the parliamentary head from his influence 
 over the legislature is able to prevent unwise legislative 
 interference with the department, far more effectively than 
 an unparliamentary head could do even if allowed a right 
 of addressing the legislature. Thus, it is said, the parlia- 
 mentary minister, even granting that in his administra- 
 tive decisions he usually defers to the experience of his 
 subordinates, is not to be regarded as a mere puppet : he 
 is at once a conduit for useful influence, and a buffer 
 against mischievous influence. 
 
 1 Even the conciliation of the parts of the country from which they come 
 cannot be altogether neglected. 
 
 2 They are forcibly urged by Bagehot in his book on the English Con- 
 stitution : who maintains, moreover, that special experience is not so 
 important as the critics of parliamentary ministers imply ; most businesses 
 being more like each other in their upper parts than in their lower.
 
 xxii RELATION OF LEGISLATURE TO EXECUTIVE 447 
 
 These arguments are not without weight : but it re- 
 mains difficult to believe that any business can be under 
 the best attainable management when the chief who has the 
 whole responsibility of action lacks the knowledge and 
 experience requisite for wise independent decisions. 1 
 conclude therefore that we have here a defect of the actual 
 system of Parliamentary government, for which some 
 remedy is needed, if governmental administration is to 
 reach a high pitch of excellence. 
 
 8. A consideration of these defects has led some 
 thinkers to the conclusion that they outweigh the advan- 
 tages of any form of Parliamentary government, especially 
 in a country whose foreign relations are of much importance 
 and difficulty, requiring careful management. In a country 
 like Germany, in which representative institutions are of 
 recent introduction and hereditary monarchy retains much 
 of its old prestige, this conclusion leads influential publicists 
 to support the independence of the hereditary monarch in 
 his choice of ministers, and in the direction of current 
 administration within the limits of law. According to this 
 view, 1 the hereditary monarch, though it ought to be his 
 aim to work in harmony with a representative assembly, 
 ought not to be compelled to choose his ministers from the 
 leaders of the parliamentary majority at any given time. 
 The proper functions of Parliament, it is said, are legisla- 
 tion and criticism, not nomination ; and though legislation 
 includes the determination of the taxes to be paid by the 
 citizens, it can never be the constitutional duty of the 
 legislative assembly to make their criticism take effect in a 
 general refusal of supplies ; which is commonly considered 
 in England to be the obvious constitutional resource for 
 compelling a refractory monarch to take the ministers that 
 Parliament approves. It is admitted that if the king's 
 ministers do not possess the confidence of Parliament, the 
 
 1 See for instance Bluntschli's Lehre vom Modemen Staate, Part I. Book 
 VI. chaps, xv. and xvi., and Part II. Book II. chap. x. Other German 
 publicists adopt a still more monarchical conception of Constitutional 
 Monarchy, which substantially leaves the whole constitution dependent on 
 the monarch's will.
 
 448 ELEMENTS OF POLITICS CHAP. 
 
 latter will legitimately manifest its distrust by refusing to 
 support any dubious costly enterprises, foreign or domestic, 
 in which the monarch and his ministers may wish to 
 indulge, or only supporting them in a niggardly manner ; 
 and it appears to be admitted that the obstacles thus con- 
 tinually placed in the way of the monarch's designs are 
 likely to lead, in the long run, to the retirement of a 
 minister who cannot persuade Parliament to open its purse- 
 strings ; but it is held that though in this way strong 
 inducements are applied to the monarch to avoid a conflict 
 with the assembly, these inducements ought never to amount 
 to a moral coercion to take the leaders of the parliamentary 
 majority as his ministers, or to let them dictate his policy. 
 This system, in short, aims at making the real power of the 
 monarch correspond to that formally given to him in the 
 English Constitution, and others framed on its model : and I 
 have accordingly termed it Simple Constitutional Monarchy. 
 If we suppose a constitution of this kind established, 
 and accepted without arrifrre pensde, in a modern state, it 
 seems quite conceivable that public opinion alone might 
 prevent the legislature from so exercising its control over 
 supplies, as to transfer the practical headship of the ex- 
 ecutive from the monarch to a parliamentary leader ; since 
 such an exercise of power would be a plain perversion of 
 the express design of the constitution. And though the 
 example of England would encourage attempts in this 
 direction, it would also serve as a warning to the adherents 
 of monarchy. At the same time this form of government 
 would gain in stability if the independence of the monarch 
 were protected from the encroachments of the representative 
 assembly by other than merely moral restraints. Such 
 protection may be given l by drawing a distinction be- 
 tween " ordinary " and " extraordinary " expenditure and 
 taxation, and fixing the ordinary budget permanently, like 
 
 1 I shall notice in the next chapter that such protection may to some 
 extent be given by the institution of a Senate or Upper Chamber. At 
 present, as I have before said, I assume that the representative assembly 
 constitutes the ordinary legislative organ.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 449 
 
 other matters legislatively determined, subject of course 
 to modifications agreed upon by the assembly and the 
 monarch. If the fixed taxation should exceed the fixed 
 expenditure, a similar agreement would be required to 
 dispose of the excess : in the opposite case of a deficit, the 
 executive must have the power of imposing fresh taxes to 
 the extent required to meet the deficit, until such taxes 
 were imposed by the assembly. In this way the assembly's 
 control over finance would become a less effective instru- 
 ment for reducing the monarch to submission ; but its 
 power of defending the citizens from over-taxation would 
 still be adequate to prevent unnecessary taxes from being 
 imposed, or fresh expenditure incurred without its consent. 
 Similarly, without impairing the security afforded by the 
 representative system against new oppressive legislation, 
 the monarch may be enabled by an effective right of 
 " veto " to resist legislation designed to fetter and sub- 
 jugate the executive ; indeed such a right of veto seems 
 almost necessary to the stability of this form of govern- 
 ment. The protection of the veto, however, may prove 
 insufficient in the long run ; as, if in a weak moment the 
 executive gives way, it may not be able to recover the lost 
 ground. Hence, as a further barrier against such legisla- 
 tive encroachments, it may be well that the assembly 
 should be constitutionally l restrained from interfering 
 otherwise than by criticism arid the refusal of assent to 
 new expenditure in certain departments of executive 
 business ; such as the selection of legally qualified persons 
 for executive and judicial employment, command of the 
 army, and the management of foreign relations generally, 
 except in the case of certain important decisions, in which 
 the intervention of the legislature cannot well be excluded. 2 
 Measures of this kind might assist in securing a sub- 
 stantial independence to the executive under the headship 
 of the hereditary monarch, without rendering illusory the 
 
 1 The general expediency of such constitutional restraints on the ordinary 
 legislature will be discussed in a subsequent chapter (XXVII.). 
 ~ This question is further discussed in 11. 
 
 2G
 
 450 ELEMENTS OF POLITICS CHAP. 
 
 popular control over legislation and taxation that is pro- 
 vided by the representative system, and therefore without 
 incurring the danger of unchecked bureaucracy. At the 
 same time there are serious objections against giving so 
 much power for life to an individual, whose moral and 
 intellectual qualifications for its exercise are so uncertain 
 as a hereditary monarch's must be. Moreover, such an 
 arrangement involves the danger of an obstinate and irre- 
 concilable conflict between the monarch and the majority 
 of the citizens. In a people whose political consciousness 
 is fully developed, such a conflict when prolonged tends to 
 become a serious political disorder : for all political order 
 rests upon habitual obedience to government, which a 
 certain amount of dislike and disapproval tends to under- 
 mine. And it may be observed that in a society that 
 takes a close and critical interest in public affairs there is 
 a tendency for discontent with the executive government 
 to grow and accumulate : since this organ exercises nor- 
 mally a variety of invidious functions which almost inevit- 
 ably tend to bring it into collision with individuals and 
 classes ; and every government makes mistakes. Such 
 gathering clouds, in our present English system, are dis- 
 persed by changes of ministry. But if the executive has a 
 permanent head who is morally responsible for what has 
 been done, the legal irresponsibility which might be consti- 
 tutionally secured to him cannot be expected to shelter him 
 from discontent : so that this method of restoring harmony 
 of sentiment cannot be completely applied. This danger 
 may be much diminished by skilful management a " king- 
 craft" that knows how to give way gracefully, stand firm 
 without causing needless irritation, and energetically lead 
 popular movements that it cannot safely resist. But it is 
 evident that want of statesmanship in the monarch is 
 likely to be much more harmful in this form of govern- 
 ment than in the English form ; and if a new constitu- 
 tion were being framed for a modern state, the risk either 
 of such a prolonged conflict as I have described, or of 
 a prolonged misuse of power by an incompetent, irre-
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 451 
 
 sponsible, and irremovable monarch, would seem to be too 
 serious to run. 
 
 Moreover, it seems likely that what I have called 
 Simple Constitutional Monarchy will always have a certain 
 tendency to pass over into the English type. For the con- 
 trol over administration which must, I conceive, be allowed 
 to the representative assembly, if its control over taxation 
 is to be a reality, is so considerable, that a monarch who 
 wishes to get any expensive plans carried out will always 
 find it more convenient to manage Parliament than to fight 
 it. He will thus be led to take as his first minister a 
 person who has the confidence of the majority in the house 
 of representatives, to avoid the annoyance and weakness 
 resulting from friction with the assembly. A minister so 
 chosen, and having consequently so strong a position in- 
 dependent of the monarch's favour, will have a certain 
 tendency to acquire the real control of executive functions. 1 
 
 9. I conclude, then, that if in a modern state it be 
 desired to give the executive greater stability and inde- 
 pendence than can ordinarily be secured to it under Parlia- 
 mentary Government, some modification of what Bagehot 
 calls the " presidential system " of the United States is 
 better adapted for the purpose than simple constitutional 
 monarchy. According to this " presidential " system the 
 supreme executive power is vested in a president elected by 
 the people for a term of years ; his ministers are incapable 
 of sitting as members of the legislature : and he is enabled 
 to resist hampering legislation by a right of veto, except 
 when a majority of two-thirds is opposed to him. A head 
 of the executive so elected may of course come into conflict 
 with the legislature, which may last till he lays down 
 
 1 I do not at all mean to affirm that this tendency is irresistible : and I 
 have already attributed to English constitutional monarchy a certain pos- 
 sibility of change in the opposite way ; since the large power that it form- 
 ally assigns to the hereditary monarch seems to offer both temptations and 
 opportunities to an ambitious holder of the office to increase his real power. 
 But in any case the unstable and fluctuating character that thus appears to 
 belong generally to constitutional monarchy must be admitted to be a 
 disadvantage, unless the type of government is regarded as essentially 
 transitional.
 
 45 2 ELEMENTS OF POLITICS CHAP. 
 
 office : this is the unavoidable defect of such a constitution 
 as compared with Parliamentary government. But as he 
 will have the strength given by popular choice at the 
 outset, and his power is only for a limited time, it is much 
 less probable than in the case of the hereditary monarch 
 that the assembly will adopt the extreme and highly incon- 
 venient measure of refusing the supplies, even if the 
 constitution gives it an unlimited power of doing this. 1 
 At the same time the president's inducements to take his 
 ministers from the leaders of the parliamentary majority 
 will be much diminished by the fact that becoming 
 ministers they cease to be leaders. 
 
 The separation, however, between the legislature and 
 the executive seems to be carried too far for convenience in 
 the United States. It would seem better to give to the 
 ministers the function of speaking 2 though not the right 
 of voting in the legislature, in order to afford them full 
 opportunity of explaining and defending executive acts 
 that excite criticism, and co-operating in certain kinds of 
 legislation. The president should have this right also, in 
 order that this communication with the legislature may 
 
 1 This view is confirmed by the recent experience of the United States. 
 In 1867, in the struggle between the Republican party and President John- 
 son, after the Civil War, Congress began to use its power of granting 
 supplies to control the action of the executive ; it did not threaten to 
 refuse supplies, but it tacked as a rider to the Array Appropriation Bill, a 
 bill virtually depriving the President of the command of the army, and 
 placing its management in the hands of General Grant. Johnson protested 
 but signed the bill ; his veto would have been useless, as his opponents 
 could have passed the bill over his veto by a two-thirds majority. From 
 this time the practice of tacking measures of general legislation to the 
 appropriation bills went on ; but usually not on account of conflict between 
 Congress and President, but as an expedient to get necessary laws passed 
 that might otherwise have been crowded out. In 1879, however, a conflict 
 again arose between the dominant party in Congress and President Hayes, 
 and similar tactics were tried by the former body ; but the dominant party 
 had not now the requisite majority of two-thirds : the President resisted, 
 vetoed one appropriation bill after another, and the parliamentary majority 
 gave way. 
 
 2 There is nothing in the constitution of the United States to prevent 
 this ; though it has never been done since Washington's days. See Bryce, 
 American Commonwealth, Part I. chap. ix.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 453 
 
 not gradually transfer supreme executive power from him 
 to his ministers. 
 
 We have further to observe that an executive appointed 
 for a fixed period need not be monarchically organised, as 
 the Federal Executive of the United States is. 1 It would 
 be quite possible to have a supreme executive organised 
 like the English Cabinet, or even one of which the mem- 
 bers were practically more on an equality, 2 elected for a 
 fixed period 3 by the legislature : though I think that, 
 ceteris paribus, a higher standard of administrative effici- 
 ency is likely to be maintained if the heads of departments 
 are appointed by a single head whether this head himself 
 be elected by the legislature or directly by the people. In 
 any case the fixed period should be, if possible, sufficiently 
 long to gain the advantages of stability, and yet not long 
 enough to weaken the sense of responsibility materially. 
 
 By such a system some of the most serious disadvantages 
 of parliamentary government would be avoided ; especially 
 if independence were further secured to the executive by a 
 permanent ordinary budget or at least one fixed for the 
 whole duration of its tenure. In this case, even if the ex- 
 ecutive were appointed by the legislature, the motive for 
 ambitious intrigues and combinations in the assembly would 
 be much diminished, since they could have no immediate 
 
 1 It is for this reason that I have not been able to use Bagehot's concep- 
 tions of " Cabinet Government " and " Presidential Government," except in 
 a quite incidental way : since they seemed inevitably to mix up two ques- 
 tions which I wished to keep distinct, the question of the relation of 
 the executive to the legislature, and the question as to the more or less 
 monarchical organisation of the executive. 
 
 2 In the English system, the equality of members of the Cabinet, even if 
 constitutionally established, could hardly be more than formal : since, 
 when any serious disagreement between Cabinet and Parliament leads at 
 once to the resignation of the former or the dissolution of the latter, 
 individuals who have predominant influence in the House and the country 
 must tend to have correspondingly predominant influence in the Cabinet. 
 But if the Cabinet were separated from the legislature and appointed 
 for a fixed period, the equality of voting power that might be secured to 
 each member would have a much more substantial significance. 
 
 3 The Swiss Federal Council exemplifies this system : except that it has 
 less independence than I should propose to give to the executive.
 
 454 ELEMENTS OF POLITICS CHAP. 
 
 or certain effect in ousting the executive. And for a 
 similar reason the executive would not be liable to be over- 
 thrown by sudden drifts of opinion within or without the 
 assembly : its administrative conduct during the fixed period 
 would be judged as a whole at the expiration of the period. 1 
 
 The system above described may be distinguished as 
 that of a Periodical Executive ; as compared with Parlia- 
 mentary government, it would, as I have said, necessarily 
 have one disadvantage, the danger of a temporarily in- 
 soluble conflict between the legislature and the executive. 
 To reduce this disadvantage to a minimum, it would seem 
 better that the executive should be elected by the legis- 
 lature than by the country, as then the two organs would 
 at any rate begin with harmony. This would not materi- 
 ally dimmish the independence of the executive ; as it 
 would not be dismissible by the legislature, and would not 
 be re-elected if at all by the legislature that elected it. 
 
 In discussing the relation of the executive to the 
 assembly of representatives, I have attached importance to 
 the power possessed by the former of dissolving the latter. 
 If harmony between Cabinet and assembly is aimed at, on 
 the principle that either is to give way if the other is 
 supported by the electorate, then to give the Cabinet the 
 right of responding to a vote of " no confidence " by a dis- 
 solution seems to be the simplest and most effective way of 
 attaining the desired end. But if the executive is not to be 
 displaceable by the assembly, the advantage of allowing it 
 to dissolve the latter seems at least doubtful ; since the 
 chance of restoring harmony by obtaining an assembly in 
 agreement with the executive is balanced by the danger of 
 greater strain on the constitution if the new parliament 
 agrees with its predecessor, the dissolution is then liable 
 to have the air of an appeal to a judge whose decision is 
 afterwards defied. It may be replied that even when the 
 head of the executive whether a president or a king who 
 
 1 It will be argued in the next chapter that a Periodical Executive is 
 better suited than Parliamentary government to the traditional method of 
 constituting the legislature of two co-ordinate chambers.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 455 
 
 governs as well as reigns holds office permanently or for a 
 considerable period, he should change his policy if it be 
 disapproved by the people as well as by the assembly. 
 But, granting this, if the system is intended to be stable, it 
 would seem better to ascertain the people's sentiments 
 otherwise than by a dissolution ; since a change of policy is 
 likely to involve a change of ministers, and if such a change 
 were palpably and repeatedly forced upon a monarch in 
 consequence of dissolutions, it would be difficult to prevent 
 the substance of executive power from passing to the 
 leaders of the parliamentary majority. It would rather 
 seem that " kingcraft " would be best shown in anticipating 
 a strong tide of popular aversion, and dropping an unpopular 
 minister with apparent spontaneity. 
 
 10. Assuming that the legislature does not undertake 
 the management of current affairs, let us now pass to con- 
 sider more closely the degree of independence which it is 
 desirable to secure to the executive, by law or custom 
 however its relation to the legislature may be determined, 
 in respect of appointment or dismissal. We have seen it 
 to be expedient that the executive should have some legis- 
 lative powers on matters requiring regulations that vary 
 from time to time according to circumstances ; but that, 
 for the security of the citizens at large, such powers should 
 be ordinarily exercised for certain strictly defined ends, 
 within limits fixed by the legislature. 1 But I have ad- 
 mitted that unforeseen occasions may arise, when the 
 public welfare requires that the executive should act, in 
 issuing commands, beyond its defined powers. The ques- 
 tion then arises how such salutary encroachments may be 
 provided for with the minimum of harm or danger. 
 
 There are two different ways of dealing with the prob- 
 lem. (1) It may be made the duty of citizens to obey all 
 
 1 See Chap XIX., especially 8. "The substance no less than the form 
 of the law," says Mr. Dicey (Law of the Constitution, chap, i.), "would, it is 
 probable, be a good deal improved, if the executive government of England 
 could, like that of France, by means of decrees, ordinances, or proclama- 
 tions having the force of law, work out the detailed application of the 
 general principles embodied in the acts of the legislature. "
 
 456 ELEMENTS OF POLITICS CHAP. 
 
 ordinances of the supreme executive, whether they are 
 legally authorised or not, while the executive is made 
 liable to penalties for issuing orders beyond its legal 
 authority, unless its liability is afterwards removed by the 
 legislature. This, however, seems a clumsy method, tend- 
 ing to confuse and impair, in the citizens at large, the 
 combined habits of respect for law and resistance to illegal 
 coercion, both of which are important for the wellbeing of 
 the community. (2) It would seem better to give the 
 executive a general power of issuing ordinances having 
 legal force without special authorisation ; but subject to 
 the restrictions that it is only to be exercised in case of 
 urgency, that such ordinances are to be communicated as 
 soon as possible to the legislature, and that they cease to be 
 valid if disapproved by that body. 1 Here the question of 
 continuity in the exercise of functions by the legislature 
 becomes important : since so long as Parliament is in 
 session it can only be in very exceptional circumstances 
 that the executive can have plausible grounds for acting 
 without previous authorisation ; while if such an excep- 
 tional occasion did arise, the legislature could disapprove 
 promptly of any oppressive or unwarrantable ordinances 
 issued by the executive. If, on the other hand, there are 
 considerable intervals between sessions of the legislature, 
 the power thus given to the executive increases in danger- 
 ousness in proportion to the length of the intervals. 
 Actually in all modern states, it is customary for legis- 
 lative assemblies to suspend their sittings for a considerable 
 portion of each year : and the custom is defensible ; since 
 the making of changes in laws is not necessarily a con- 
 tinuous function ; and representatives removed for the 
 whole period of their tenure even allowing for the brief 
 holiday necessary for health from the districts that they 
 represented would be liable to lose touch of their constitu- 
 
 1 If the legislature consists of two chambers, disapproval by either 
 chamber should be sufficient to invalidate : otherwise the law might be 
 modified to any extent by the executive together with the majority of one 
 chamber, which would be contrary to the principle of the two-chamber 
 system.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 457 
 
 encies ; also the greater onerousness of the prolonged sever- 
 ance from home and private affairs might inexpediently 
 restrict the choice of legislators. If then, for these or 
 other reasons, there is a considerable part of the year in 
 which the legislature is not sitting, an unlimited right of 
 issuing ordinances which have the force of laws during 
 this period seems too formidable a power to grant to the 
 executive. To obviate this danger the executive should 
 be bound to summon the legislature for an extraordinary 
 session at least simultaneously with if not before the 
 issue of any ordinance which it has not been specially 
 authorised to issue. 
 
 It is a different question whether the executive should 
 ever have the power of infringing the definite legal re- 
 straints under which its function of maintaining order is 
 normally exercised e.g. by arresting and detaining at its 
 discretion persons suspected of dangerous designs. It seems 
 rash to deny that the exercise of such powers, even with- 
 out special authorisation, may be advantageous in a dis- 
 turbed condition of society : but we may reasonably require 
 that such exceptional powers should only be assumed when 
 there is if not actual war, foreign or civil at least 
 imminent danger of violent and dangerous disorder ; and, 
 of course, that the authorisation of the legislature should 
 be as soon as possible obtained for the continued exercise 
 of such powers. 
 
 The assumption by the executive of the right of inflict- 
 ing punishment as such, without the ordinary process of 
 trial by an independent court of justice, can, I conceive, 
 only be defended as a military measure, in time of actual 
 war, within the range of military operations. 
 
 If parliamentary sessions are discontinuous, the question 
 arises how their duration is to be determined, apart from 
 the case of dissolution. Under the English system, as the 
 main legislative business of Parliament is prepared and 
 managed by the executive, the opening and closing of parlia- 
 mentary sessions is naturally left to the latter organ ; if, 
 however, the executive is not dismissible by the legislature
 
 458 ELEMENTS OF POLITICS CHAP. 
 
 and especially if it is not dependent on the legislature 
 for an annual supply of the funds required for ordinary 
 expenditure -it becomes important that it should not deter- 
 mine the duration of parliamentary sessions. On the other 
 hand, to fix the period of session by a rigid rule seems 
 inconvenient, as the amount of urgent legislative business 
 may vary much from time to time ; but it might be well 
 to have a minimum period fixed by a permanent law for 
 ordinary annual sessions, the legislature having the power 
 of prolonging it, and of holding extraordinary meetings at 
 its own discretion or at the summons of the executive. 
 
 If the executive is independent of the legislature, it 
 should have the constitutional right of proposing new 
 legislative measures to the latter ; since, for certain kinds of 
 legislation, an intimate co-operation between the two organs 
 is expedient, if not indispensable. Where, however, the 
 Cabinet is normally composed of members of parliament, this 
 right becomes practically superfluous : here the important 
 question rather is how far it is expedient to leave to the 
 executive Cabinet the preparation and practical management 
 of the legislative work of Parliament. The arrangement is 
 clearly advantageous where the proposed legislation is closely 
 connected with executive functions, so that one or other of 
 the executive departments is a natural d6pdt of experience 
 on the matters in question ; and it is probably inevitable, 
 wherever Parliamentary government is worked on the two- 
 party system, as regards all questions on which the parties 
 are understood to disagree. But there remain important 
 kinds of legislation with regard to which the executive as 
 such has no claim to special knowledge ; and which are even 
 now to some extent and might be to a greater extent 
 declared outside the arena of party conflict. It would seem 
 that the management of such legislation might with advan- 
 tage be entrusted to a committee other than the Cabinet, so 
 as to diminish the danger of overburdening the executive 
 with legislative work ; of which committee the chairmen of 
 the standing committees appointed to deal with different 
 departments of legislation would naturally be members.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 459 
 
 In financial matters there is a special advantage in 
 leaving the initiative entirely to ministers, as they are in 
 the best position for enforcing economy in expenditure, and 
 are more likely to enforce it if the responsibility for financial 
 proposals rests entirely on them. If this plan is not 
 adopted, it will be at any rate indispensable to provide that 
 no proposals involving a material addition to the public ex- 
 penditure should be brought before the legislature without 
 being referred to the same committee that is responsible for 
 proposals relating to taxation ; in order that no expenditure 
 may be undertaken without due consideration of the relative 
 importance of the need it is designed to meet, as compared 
 with other public needs and with the public resources. 
 
 11. It remains to inquire how far the legislature in its 
 turn ought to be restrained, either by law or by definite 
 customary rules, from the excessive interference with execu- 
 tive work which we have recognised as a danger. In dis- 
 cussing this question, it will be convenient to consider 
 separately (a) the regulation of the mutual relations of 
 members of the community other than servants of govern- 
 ment treated as such, (&) the organisation and management of 
 the executive service, (c) the management of foreign affairs. 
 The first of these constitutes the primary sphere of normal 
 legislative activity, which we have had chiefly in view in 
 constructing the legislature on the representative system. 
 Here I have already 1 recognised, as a generally sound 
 maxim, that the general rules to be enforced by Government 
 should be discussed and determined apart from their parti- 
 cular application, in order that they may be afterwards 
 carried out without " respect of persons." It is obviously 
 just and expedient that no individual, group, or class within 
 the community should be arbitrarily subjected to special 
 legislation, where there are no peculiar circumstances to 
 justify exceptional treatment. But where such peculiar 
 circumstances appear to exist, it does not seem either just or 
 expedient to prevent Parliament from framing particular 
 legislative provisions with a view to them. Hence constitu- 
 
 1 See Chap. XIX. 8.
 
 460 ELEMENTS OF POLITICS CHAP. 
 
 tional rules l against " special legislation," even supposing 
 that they can be made effective, seem to me a clumsy and 
 unsatisfactory method of guarding against injustice and 
 jobbery. 
 
 A noteworthy case of such special legislation is the class 
 of measures by which powers of compulsory purchase of 
 land, and other privileges, are granted to industrial com- 
 panies formed to supply some important social need such 
 as the need for canals, railways, tramways, or for water or 
 artificial light. If the general expediency of thus rendering 
 governmental aid to a certain kind of industrial enterprise 
 is held to have been established, and if the general conditions 
 under which the required powers or privileges ought to be 
 granted can be decisively laid down, then it certainly seems 
 most proper that Parliament should confine its action to the 
 laying down of these general conditions, leaving it to some 
 executive 2 body to deal with the particular applications of 
 particular companies. When, however, a new departure is 
 being made in this semi-public organisation of industry, it 
 may often be the wisest course for the legislature to proceed 
 tentatively, and not to separate its general regulations from 
 their special applications in particular instances, until a 
 certain amount of experience has been gained of the methods 
 and effects of the novel enterprise. 
 
 (6) As regards the organisation and management of the 
 whole executive organ, it clearly belongs to the legislature 
 to define the powers of the officials, and to determine what 
 special privileges or liabilities it may be for the public 
 advantage to allot to or impose on any class of the servants 
 of government as such, and, generally, to lay down the con- 
 ditions of appointment and tenure of executive offices. And 
 
 1 Such rules are common in the American State Constitutions. See 
 Bryce, American Commonwealth, Part II. chaps, xl., xliv., and xlv. 
 
 2 The work is primarily of an executive character, because it consists in 
 balancing considerations of public expediency, not in interpreting rules of 
 strict right. But the determination of the amount of compensation payable 
 for any infringement of pre-existing rights that may thus be legalised is a 
 strictly judicial matter, and should not be determined by the executive, but 
 referred to arbitration or judicial decision.
 
 XXII RELATION OF LEGISLATURE TO EXECUTIVE 461 
 
 it would seem that experience alone can determine the 
 degree of minuteness to which the financial control exercised 
 by the legislature over the executive should be carried, so as 
 to secure the maximum of economy without impairing the 
 general efficiency of the organ, or its power of promptly 
 meeting sudden calls for special activity. On the other 
 hand, for reasons before given, the legislature should be 
 prevented, by law or custom, from interfering in the 
 selection of individuals to fill vacant posts, or in the 
 particular allotment of tasks to them, within the range 
 of the business assigned to the department to which they 
 belong. 
 
 (c) It is not easy to establish a satisfactory distribution 
 of functions between the two organs in relation to foreign 
 affairs. There is usually little room here for the exercise 
 of strictly legislative functions, and, as we have seen, the 
 direct intervention of a numerous representative assembly 
 in the management of particular questions in this depart- 
 ment is not likely to be advantageous. At the same time, 
 there are certain decisions of fundamental importance to 
 which the consent of the supreme legislative and money- 
 granting organ seems indispensable. Thus, the control of 
 the organ over finance would be seriously impaired if treaties 
 of commerce, regulating the taxation of imports from certain 
 countries, could be made without its consent. War, again, 
 from the additional expenditure that it entails, must require 
 the active co-operation of the money-granting organ ; and, 
 again, it seems right that the consent of the legislature 
 should be necessary to the validity of any change in the 
 territory for which it has the constitutional duty of making 
 laws. Perhaps the least unsatisfactory arrangement would 
 be that the consent of the legislature should be required, 
 as a general rule, for making war, or ceding or annexing 
 territory, or making treaties that pledge the State to any 
 such measures or that otherwise affect materially the financial 
 liabilities or resources of the State : while at the same time 
 certain acts falling under this rule should be allowed to be 
 validly performed by the executive without such consent if,
 
 462 ELEMENTS OF POLITICS CHAP. 
 
 in the opinion of the latter, the delay and public discussion 
 that the ordinary procedure would involve would be injurious 
 to the public interest provided that whenever the executive 
 found it necessary to act thus on its own responsibility, its 
 action and the grounds for it should be communicated as 
 soon as possible to the legislature. 1 
 
 Finally, one important function of the legislature is to 
 make or direct systematic inquiries into matters on which 
 information is needed, either with a view to legislation, or 
 for critical supervision of the executive. It should therefore 
 be the general duty of the latter to assist such inquiries by 
 furnishing information : but it should not be compelled to 
 disclose anything which it is for the public interest to keep 
 secret. 
 
 12. So far I have considered the mutual relations 
 of the legislature and the executive, regarded in their cor- 
 porate capacity. But, before concluding, it is necessary to 
 consider the danger of undue influence exercised by the 
 supreme executive on members of the legislature ; since 
 important restrictions on eligibility to Parliament have been 
 introduced into modern constitutions in order to meet this 
 danger. 
 
 Such undue influence, which may take the form either 
 of intimidation or bribery, is more formidable in proportion 
 as circumstances render it easy to exercise and difficult to 
 detect ; and there would obviously be special facilities for 
 exercising it on subordinate executive officials if they were 
 elected members of the legislature. Even granting that 
 public opinion would secure any such official from dismissal 
 for voting against the wishes of the supreme executive 
 
 1 If the power thus left to the executive, to make binding engagements 
 which might be kept secret for an indefinite time, seemed to be too great, 
 the need of occasional secrecy might be partly met by appointing a small 
 Foreign Affairs Committee of the legislature ; who might have the con- 
 stitutional right of being informed at once of all engagements made by the 
 executive with foreigners, and whose approval should be necessary to the 
 validity of the secret engagements. I think, however, that it would be 
 generally better to trust the executive, in order that responsibility for 
 difficult and delicate negotiations may be concentrated on the persons who 
 have the actual management of the affairs.
 
 xxn RELATION OF LEGISLATURE TO EXECUTIVE 463 
 
 which can hardly be certain at any rate the hope of pro- 
 motion would be a motive impossible to exclude. It would 
 seem therefore expedient that subordinate members of the 
 executive should be generally incapable of sitting in Parlia- 
 ment ; for they are liable either to be too subservient to 
 their chiefs, or, if not, to be forced into a public opposition 
 to them, tending to destroy the harmony that should exist 
 between the head of a department and his subordinates. 
 Further, if the working of the executive is economical and 
 efficient, it is hardly likely that salaried subordinate officials 
 will have enough spare time and energy to be good members 
 of Parliament. Moreover, such persons are liable to have 
 private interests or an esprit de corps opposed to economy 
 in the organisation of the executive. I conclude, therefore, 
 that the executive posts tenable by members of the Legis- 
 lature shall be limited to such as appear to be required, 
 under Parliamentary government, as a link between the two 
 organs. 
 
 Some bribery may still be exercised by giving appoint- 
 ments to persons who have been members of Parliament. 
 This might be largely obviated by making it illegal to give 
 paid governmental employment to any person who either is 
 a member of Parliament, or has been one within a certain 
 period previous to the appointment, exceptions being made 
 in the case of posts for which the work of Parliament 
 may seem a specially good preparation, or specially adapted 
 to test qualifications. 
 
 The possibility of bribery by pensions ought not to be 
 important, if adequate financial control is exercised over 
 the executive ; since the only pensions given should be 
 either (1) earned in the ordinary course of governmental 
 service, or (2) specially awarded in recognition of eminent 
 merit ; and in neither case ought they to be subject to 
 withdrawal at the discretion of heads of departments. 
 
 Finally, while freedom of speech in Parliament should 
 be specially guarded by law, it hardly seems that any 
 special protection of members of Parliament, against misuse 
 of the power of the executive to arrest law-breakers, ought
 
 464 ELEMENTS OF POLITICS CHAP, xxn 
 
 to be necessary in a State in which ordinary citizens are 
 adequately secured against this kind of oppression. Perhaps, 
 however, a power of exercising such protection might be 
 advantageously secured to the legislative assembly, for use if 
 the occasion should arise.
 
 CHAPTEE XXIII 
 
 TWO CHAMBERS AND THEIR FUNCTIONS 
 
 1. THE division of governmental functions into legislative, 
 executive, and judicial, which has so far formed the basis 
 of our discussion of governmental structure, is not merely 
 suggested by the historical separation of the corresponding 
 organs in the states of Western Europe : it appears to belong 
 to the essential nature of law and government, at least from 
 the time that the former has come to be regarded as normally 
 modifiable by the latter. The business of changing the 
 general rules by which the relations of citizens (so far as 
 compulsory) are determined, the judicial application of these 
 rules to particular cases, and the performance of the coercive 
 and industrial work of government within the limits which 
 such general rules define, we can hardly conceive that 
 these will not always remain operations broadly distinct in 
 their character, and requiring, for the most part, different 
 kinds of intellectual and moral qualifications in the indi- 
 viduals and bodies to whom they are entrusted. And the 
 general tendency to specialisation of functions which char- 
 acterises the development of civilised societies affords 
 a presumption in favour of a continually more marked 
 separation of these branches of governmental work, at 
 least so far as the most important matters are concerned, 
 however intimate and complex may be the relations 
 among the organs to which these functions are severally 
 entrusted. 
 
 The case is different with the other threefold division, 
 
 465 2H
 
 466 ELEMENTS OF POLITICS CHAP. 
 
 which, in West-European states, is widely regarded as no 
 less normal and universally expedient than that which we 
 have been discussing : I mean the distribution of legislative 
 power among " Crown, Lords, and Commons," to use the 
 old English terms. "We have seen, indeed, that, if the 
 executive is to have any substantial independence within 
 the limits of the law, it should have some means of resist- 
 ing new hostile legislation, such as is given by an effective 
 veto whether absolute or qualified ; unless, as in the 
 English system, the main work of legislation, together with 
 the supreme executive power, is entrusted to a committee 
 of the legislature, with authority to dissolve the legislative 
 assembly and appeal to the constituencies : otherwise it 
 seems difficult to prevent a legislature in conflict with the 
 executive from passing laws so minute and detailed in their 
 provisions as almost to nullify the independence of the 
 executive. But I know no equally obvious reason for 
 complicating the legislative organ by the introduction of a 
 second chamber : and the complexity is certainly in itself 
 an objection ; a proposal to establish a three-chambered 
 legislature would be generally rejected without hesitation, 
 merely on account of its complexity. There is, however, a 
 decided preponderance of opinion even where representa- 
 tive institutions are fully developed in favour of institut- 
 ing a supplementary chamber, which I shall call the 
 Senate, whose co-operation with what I shall call the 
 House of Eepresentatives l should be normally necessary for 
 the passing of laws : though, as to the exact grounds on 
 which such a chamber is desirable, and the relation in 
 which it ought to stand to the other chamber, we find 
 considerable divergence. 
 
 Thus in one set of arguments urged in favour of two 
 chambers, the mere duality with adequate dissimilarity 
 of legislative bodies appears to be the important point, 
 
 1 It is difficult to find clearly distinctive terms for the two chambers, 
 since, as we shall see, the members of both may be periodically elected. 
 The American names that I have adopted seem to me on the whole most 
 convenient.
 
 xxni TWO CHAMBERS AND THEIR FUNCTIONS 467 
 
 rather than any particular character or quality which the 
 members of the Senate are intended to possess : stress being 
 laid on the completer discussion of proposed laws which is 
 thus obtained, the protection against the passions which 
 are more likely to affect a single body than two, the check 
 on the temptations which the consciousness of possessing 
 supreme power carries with it. As regards the last of 
 these points l I think that, in the English system of Parlia- 
 mentary government, the evil effects of the mere intoxica- 
 tion of power so far as this is supposed to operate through 
 the esprit de corps of a governing organ tend to be materi- 
 ally reduced, in the House of Representatives no less than 
 in the Cabinet, by the check which each exercises on the 
 other, and especially by the appeal to the people that is at 
 any time possible. At the same time, the danger of en- 
 croachments by the legislature on the functions of the 
 executive is undoubtedly diminished by the existence of 
 two legislative chambers ; as this necessarily maintains a 
 broad and palpable distinction between the resolutions of 
 either chamber and binding laws. Again, the danger of 
 hasty legislation in harmony with the aims of a temporarily 
 predominant faction of the electors from which no form 
 of parliamentary government is free is reduced by secur- 
 ing a rediscussion of all proposed legislation, by a body 
 independent of the House of Representatives; provided it 
 is appointed in such a manner as to be less influenced 
 than the latter by passing drifts of popular opinion. Some 
 protection is also afforded against a sinister combination of 
 private interests to pass measures opposed to the public 
 good ; since such a combination is at any rate more easily 
 managed in one chamber than in two. That these ad- 
 vantages may be realised, it is of course necessary that the 
 Senate should actually have sufficient prestige and influence 
 to enable it effectively to modify legislation : and the gain 
 will clearly be greater the more the mode of appointing its 
 members tends to secure in them, on the average, such 
 
 1 This is the point on which most stress is laid by Mill, Sepresentative 
 Government, chap. xiii.
 
 468 ELEMENTS OF POLITICS CHAP. 
 
 legislative qualifications as are likely to be most lacking in 
 the primary chamber. 
 
 This last consideration leads us to another, widely pre- 
 valent, view of the upper chamber, which regards it as 
 required to give adequate representation of the aristocratic 
 element of the community, in order to balance the undue 
 preponderance of the masses in the House of Representa- 
 tives. The need of such a balance I have already re- 
 cognised : l but in considering this method of meeting the 
 need, we have to distinguish clearly two elements, fre- 
 quently blended in the notion of " aristocracy " as thus 
 used : (1) superiority in general culture and political en- 
 lightenment, and (2) inherited wealth especially landed 
 property considerable in amount. For these two attri- 
 butes are only to a limited extent likely to be found 
 together ; since, though the leisure and opportunities which 
 large wealth brings with it have a certain tendency to 
 produce culture and enlightenment in their possessors, this 
 tendency is seriously counteracted by the temptations to 
 idleness and self-indulgence which beset the rich. And, 
 though I fully admit the danger that a House of Repre- 
 sentatives, elected on a widely extended suffrage, may pass 
 bad laws hostile to the interests of the rich, it hardly 
 seems that the institution of a second chamber, avowedly 
 representative of wealth on a large scale, is likely to be a 
 permanently effective way of meeting this danger ; on 
 account of the specially marked and invidious opposition 
 between wealth and numbers which it introduces. I think, 
 therefore, that a wise partisan of the wealthy minority, in 
 framing a new constitution for a modern country, would 
 accept as a principle of construction that a Senate ought 
 primarily to represent superior culture or political enlighten- 
 ment rather than wealth. 
 
 2. I shall take, therefore, the main end for which a 
 
 Senate is constructed to be that all legislative measures 
 
 may receive a second consideration by a body different in 
 
 character from the primary representative assembly, and, if 
 
 1 See Chap. XX. 5.
 
 xxni TWO CHAMBERS AND THEIR FUNCTIONS 469 
 
 possible, superior or supplementary in intellectual qualifica- 
 tions. Let us, then, consider (1) in what relation such a 
 chamber should stand to the House of Eepresentatives ; 
 and (2) how its members should be appointed. Of these 
 questions the first should, I think, have prior consideration, 
 since the answer given to it must to some extent determine 
 the answer to the second question. 
 
 The most obvious and simple arrangement is to make 
 the two chambers co-ordinate, with equal powers ; so that 
 the free consent of both shall be necessary to any binding 
 decision of the legislature ; and, therefore, if either house 
 refuse its consent to any proposed legislative measure, it 
 must drop or be postponed. Now, apart from the advantage 
 of harmony between the legislative and executive organs, 
 there would seem to be ordinarily l little danger of harm in 
 the postponement in such a case of a proposed law, assum- 
 ing that the judgment of the Senate on the merits of the 
 law is as good as that of the primary representative 
 chamber : a conflict between the chambers would mostly 
 have only the effect of deferring legislation, of which the 
 advantage is at best doubtful. The cases in which both 
 chambers were agreed as to the urgency of the need for 
 some legislation, but disagreed as to the kind of legislation 
 needed, would probably be exceptional, and might perhaps 
 be left to be met by compromise on each occasion. 2 But it 
 hardly seems prudent to deal thus with financial disagree- 
 ments ; at least if in order that financial control may be 
 as complete as possible the provision even for fixed and 
 necessary expenditure is only determined for short periods. 
 For in this case the Budget cannot be postponed, as most 
 new laws can ; so that there will be a regular danger of a 
 deadlock whenever the two chambers disagree either as to 
 the mode of raising funds by taxation, or as to the appro- 
 priation of the funds to different branches of expenditure. 
 
 1 In exceptional cases -the disadvantage of delay might be greater ; see 
 Chap. XXVII. 3. 
 
 2 If compromise was found very difficult, recourse might be had, with 
 the consent of both Houses, to a direct vote of the electorate. See p. 473, 
 note, and Chap. XXVII. 3.
 
 470 ELEMENTS OF POLITICS CHAP. 
 
 To meet this difficulty otherwise than by relying on 
 the wisdom and moderation of both chambers we must 
 sacrifice either (a) the duality of the chambers, or (5) the 
 equality of their powers, or (c) the extent of their financial 
 control, (a) It may be provided that, in case of disagree- 
 ment between the chambers on a financial question, the 
 point shall be decided by the majority of votes in the two 
 chambers taken together : but this besides rendering the 
 two-chamber system pro tanto a superfluous complication 
 also tends to diminish the security of the taxpayers, unless 
 the Senate is equally trusted as guardian of the public 
 purse. (&) The knot may be cut by confining the financial 
 control to the House of Eepresentatives, as it is practi- 
 cally confined in England, where the upper chamber has 
 only the power of accepting or rejecting financial measures 
 en Hoc, not of initiating or modifying in detail ; but this 
 method, of course, gives a very decided preponderance of 
 power to the chamber that possesses this control, (c) The 
 danger may be reduced by settling ordinary taxes, and the 
 appropriations for ordinary expenditure, permanently as far 
 as possible ; so that a disagreement between the chambers 
 may not deprive the Government of absolutely necessary 
 supplies ; but this expedient would not certainly be ade- 
 quate, unless the executive had also some power of impos- 
 ing supplementary taxes on its own authority, since the 
 returns from the fixed taxes in any year might prove 
 insufficient to meet the fixed expenditure. 
 
 Supposing the question of financial control to be settled 
 somehow, no further difficulty is introduced by the two- 
 chamber system as to the relation of the executive to the 
 legislature if the former's tenure of office is independent 
 of the latter : indeed, in this case, the division of the legis- 
 lative organ into two bodies with equal powers is likely to 
 be useful as tending to protect the independence of the 
 executive, by rendering encroachments on the part of the 
 legislature more difficult assuming it to be the design of 
 the constitution to maintain the executive in effective 
 independence.
 
 XXIII TWO CHAMBERS AND THEIR FUNCTIONS 471 
 
 On the other hand, the system of two really co-ordinate 
 chambers does not seem to be suited to any form of Parlia- 
 mentary government : because a conflict between the cham- 
 bers tends to destroy the harmony between legislation and 
 administration, which appeared to be the characteristic 
 merit of this form of government. For, if the two cham- 
 bers are to have equal powers, the dismissal l of the exe- 
 cutive could only be effected either (1) by concurrent 
 resolutions of the majorities in the two chambers, or (2) 
 by a resolution of the majority of the whole body formed 
 by uniting the two. In the first case, it is obvious that so 
 long as the two chambers are in conflict the dismissal is 
 not likely to be effected ; while, on the other hand, the 
 executive may be unable, for an indefinite time, to obtain 
 legislation that it considers vitally important. Nor would 
 it help matters to unite the chambers into one body for 
 the purpose of appointing and dismissing the executive ; 
 since this would not bring the latter into effectual harmony 
 with the legislature, so long as the duality is retained for 
 the purpose of legislation. Nor would a termination of 
 the conflict be certainly attained by allowing a simul- 
 taneous dissolution of both chambers, supposing them 
 both to be elected unless they are elected on methods so 
 similar that they are sure to agree immediately after 
 election : in which case the ends aimed at in the two- 
 chamber system would hardly be attained at ordinary 
 
 1 I have not thought it right to assume that the power of dismissing the 
 executive is inseparably connected with financial control, though it actually 
 is so connected in the English constitution and others formed on its model ; 
 since it is quite conceivable that the two should be separated. Of course if 
 there is an annual Budget, and a refusal of necessary supplies is regarded as 
 a legitimate exercise of the financial control of the money-granting organ, 
 the latter must have the power of dismissal. But, as I have before sug- 
 gested, ordinary expenditure might be settled by a Budget that would 
 remain in force if not modified by agreement between the legislature and 
 the executive ; or, again, it might be regarded as an improper use of 
 financial control to compel ministers to resign by a refusal of the supplies 
 necessary for such expenditure; and, on the other hand, it is quite con- 
 ceivable that the constitutional right of dismissing the executive should be 
 given to the legislature directly, without any refusal of supplies.
 
 472 ELEMENTS OF POLITICS CHAP. 
 
 times. Nor, again, could a solution be arrived at by the 
 English plan of giving the right of dismissing the executive 
 to the House of Eepresentatives alone balanced by the 
 executive's power of dissolving the House so long as the 
 co-ordinate position of the Senate was really maintained in 
 legislation. If, however, so great an inequality of powers 
 between the two chambers were introduced, it would be 
 practically difficult to maintain the Senate's position ; 
 owing to the pressure that would be put on the Senate to 
 yield to the " verdict of the people " whenever the executive 
 and the House of Kepresentatives, after a dissolution, were 
 agreed in desiring a new law. If the Senate resists this 
 pressure the discontent and constitutional friction generated 
 are likely to be a serious evil; if it gives way against 
 its real judgment, its power of performing its functions 
 effectively will not be assisted by its formally co-ordinate 
 position. 
 
 It appears to me, therefore, that a really co-ordinate 
 second chamber is an alien element in Parliamentary 
 government when fully developed. In a country like 
 England, where the existing distribution of power is the 
 result of a process of gradual change, a second chamber 
 invested formally with co-ordinate powers, but practically 
 restricted in their exercise by custom and opinion with 
 the Crown's right of creating new peers as an ultimate 
 control l may work tolerably well. But if, in framing a 
 new constitution, we desire as far as possible to combine 
 the advantages of a two-chambered legislature with those 
 of a Parliamentary executive, it would seem better to limit 
 in some way the Senate's power of resisting legislative 
 measures approved both by the House of Eepresentatives 
 and by the people. It is, however, difficult to devise a 
 limitation which shall be effectual without going too far: 
 perhaps the best compromise would be to make the 
 functions of the Senate merely consultative in respect of 
 
 1 I do not mean to imply that the use of this power to coerce a hostile 
 majority in our House of Lords would not be semi-revolutionary. See 
 Chap. XXXI. 5.
 
 xxni TWO CHAMBERS AND THEIR FUNCTIONS 473 
 
 any measure approved by the House of Eepresentatives 
 in two successive parliaments. 1 
 
 If, however, the advantages of intimate connection and 
 harmony between the legislative and executive organs are 
 sacrificed to obtain the advantages of greater stability and 
 clear separation of functions as appears to be the case 
 under any form of government in which the Supreme 
 Executive holds office for life or for a fixed period I see 
 no reason why the Senate should not be made so far really 
 as well as formally co-ordinate, as to be able to offer effectual 
 resistance to legislation which it regards as pernicious or 
 dangerous. 
 
 3. Supposing that this real power of resistance is de- 
 sired, it is important to appoint the Senate in a manner that 
 will make it practically strong enough to hold its own in a 
 conflict with the House of Eepresentatives. The application 
 of this principle will vary considerably with the varying 
 historical traditions of different societies. But I think that 
 the desired result is not likely to be obtained in a com- 
 munity where there is a House of Eepresentatives freely 
 elected and in full consciousness of its power, unless the 
 members of the Senate have also the strength given by 
 popular election. I fully admit that the opinion of a Senate 
 composed of distinguished men nominated for life by the 
 executive, or appointed ex officio as holding or having 
 held for a certain period important executive or judicial 
 posts, is, under ordinary circumstances, likely to have weight 
 with the public ; and may be effective in checking from time 
 to time dangerous drifts of popular opinion. But suppose 
 that such a chamber has expressed its opinion and has not 
 persuaded the public : then, surely, the sight of a handful 
 
 1 Another method might be adopted, with the consent of both chambers, 
 in case there was urgent need of a more rapid settlement : viz. to allow a 
 direct vote of the electorate to be taken on a measure passed by the House 
 of Representatives and rejected by the Senate. This would have the 
 advantage of obtaining the decision of the citizens at large on the particular 
 issue disputed between the chambers, more clearly than it could be obtained 
 by a general election of representatives : since the choice of representatives 
 ought not to be, and probably never would be, entirely determined by their 
 opinions on a single measure. See Chap. XXVII. 3.
 
 474 ELEMENTS OF POLITICS CHAP. 
 
 of individuals, presuming on the score of their personal 
 superiority to resist permanently the " will of a people " 
 whom they are unable to convince, is likely to rouse popular 
 indignation and clamour, and to cause at least a dangerous 
 strain on the constitution. I think that a second chamber, 
 in order to be able to maintain a really co-ordinate position 
 against the pressure of a popularly elected assembly, must 
 itself be also in some way, though perhaps indirectly, the 
 result of popular election. 
 
 It is not, however, easy to find a satisfactory mode of 
 election, calculated to furnish a Senate at once strong in 
 popular support and at the same time sufficiently different 
 in character from the House of Representatives to realise 
 the full advantages of the two-chamber system. A small 
 upper chamber elected, as in Norway, both by and from the 
 House of Representatives, would have the advantage of 
 being at once popularly elected, and yet chosen by persons 
 who are comparatively experts : but this method hardly 
 seems likely to produce a sufficient degree of difference in 
 the quality of the two chambers. A Senate elected by or 
 from a class of citizens above the average in education and 
 culture might be expected to have a higher degree of 
 political enlightenment : but it would, in any conflict with 
 the primary representative assembly, be open to the invidious 
 charge of contending for sectional against national interests. 1 
 Election by persons who are themselves elected by the people 
 at large is free from this objection and has much to recom- 
 mend it : but, as we have seen, 2 unless the intermediate 
 electors have other important functions, there would be a 
 danger of their becoming mere puppets. This leads us to 
 the plan of election by elected local governments, which 
 was adopted in the appointment to the Senate in the United 
 States, 3 and has since been introduced elsewhere. This plan, 
 
 1 This objection remains strong, even though the limit is educational, not 
 pecuniary ; owing to the inevitable tendency of superiority in education to 
 be connected with superiority in wealth. 
 
 2 See p. 403. 
 
 3 The importance of this mode of election, in a Federal system, will be 
 explained in a subsequent chapter (XXVI.).
 
 xxiii TWO CHAMBERS AND THEIR FUNCTIONS 475 
 
 however, is open to the objection that it tends to import 
 alien considerations into the election of local organs of 
 government. 
 
 Perhaps it might be best to elect intermediate electors 
 
 simply for the function of electing senators, avoiding or at 
 
 least reducing the danger of their being elected under 
 
 pledges to vote for particular candidates by appointing 
 
 them some time before they have to exercise their functions. 
 
 At the same time, the Senate might be further differentiated 
 
 from the House of Representatives by combining a number 
 
 of minor differences, and providing that the members of the 
 
 Senate should be (1) fewer in number and so chosen from 
 
 larger districts, and therefore likely to have a higher 
 
 average of personal eminence ; (2) appointed at a more 
 
 advanced age, and (3) for a longer period ; and also (4) on 
 
 the plan of partial renewal. As regards this last point I 
 
 may remind the reader that, in discussing (in Chap. XX.) the 
 
 conditions of election of a representative assembly, I omitted 
 
 to consider whether such an assembly should be elected all 
 
 at once except in the case of accidental vacancies or only 
 
 renewed in parts, a certain number of seats being vacated 
 
 and filled up at each new election. I deferred this question, 
 
 because the answer to it seemed to depend partly on the 
 
 relation between the executive and the legislature, partly 
 
 on the choice made between one and two chambers. There 
 
 seems no doubt that simultaneous renewal is the only 
 
 method suitable, where it is important that a dissolution of 
 
 the representative assembly, and a consequent appeal to the 
 
 people, should be at any time possible : the appeal could 
 
 not otherwise receive a clear and decisive answer. But in 
 
 order to get the full advantages of the system of two 
 
 chambers, with co-ordinate powers, it seems desirable that 
 
 they should be elected on different plans, in respect both of 
 
 extent of renewal and of duration of powers ; so that while 
 
 the primary representative chamber, being chosen all at 
 
 once for a comparatively short period, may more freshly 
 
 represent the opinions and sentiments of the majority of 
 
 the electorate, the Senate, elected for a considerably longer
 
 476 ELEMENTS OF POLITICS CHAP. 
 
 period, and on the system of partial renewal, may be able 
 to withstand the influence of any transient gust of popular 
 passion or sentiment. 
 
 If, however, the Senate is only designed to have the 
 power of delaying objectionable legislation, and enforcing 
 ample consideration of the objections urged against it 
 we shall rather seek to obtain a body of persons whose 
 judgments are likely to be received with respect, from 
 their individual merit and experience : and in this case 
 appointment ex officio, supplemented to a certain limited 
 extent by nomination for life by the executive, has much to 
 recommend it. Some combination of these methods seems 
 preferable to co-optation in any form : since a co-opting 
 Senate would be liable to be unduly swayed by the 
 intriguing of cliques and the exclusiveness of party-spirit, 
 and still more liable to odium through a general belief 
 that it was so swayed. Or one or both of the methods 
 above mentioned might be combined with that of election by 
 the organs of local government, the objection to which is 
 less when the legislative power of the Senate is reduced, 
 since in this case the members of local governments are 
 less likely to be elected with a view to their elective 
 function. 
 
 I have not spoken of heredity as a mode of determin- 
 ing the membership of the Senate. It must, I think, be 
 considered a survival from an earlier stage of social develop- 
 ment : it has not been adopted in any of the new communities 
 founded by Englishmen in America and Australia : nor in 
 the European constitutions framed most under the influence 
 of modern ideas in France, Belgium, and Holland, or in 
 the Scandinavian countries, or in Italy. On the whole, I 
 think it can now hardly be counted among methods requir- 
 ing to be seriously considered in constructing a second 
 chamber for a modern community, in which birth is 
 generally disregarded in the allotment of executive and 
 judicial functions. The chance of obtaining superior in- 
 tellectual qualifications, through physical inheritance, in 
 the sons of statesmen, though it must be allowed to be
 
 xxni TWO CHAMBERS AND THEIR FUNCTIONS 477 
 
 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 pre- 
 paration 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 effort which economic necessities or 
 social ambitions supply to youths of humbler origin. 
 
 To sum up, then : assuming that a Senate is desirable, 
 I should reject as generally inexpedient modes of appointing 
 senators under the social and political conditions of a 
 modern state co-optation, inheritance, and those modes of 
 election which manifestly render the elected chamber repre- 
 sentative of a section of the whole body of citizens. Among 
 the acceptable modes of appointment I should distinguish 
 (1) those that aim at securing personal weight in the 
 senators ; and (2) those that aim at securing representative 
 weight. I should place in the former class nomination on 
 the ground of eminence by the executive, and appointment 
 as a consequence of holding or having held for a certain 
 time certain high offices. In the latter class I should 
 include all modes of election which would render the 
 persons elected representative in some way of the whole 
 body of citizens. The methods included in the first class 
 appear to me well adapted for the purpose of providing a 
 chamber that is only designed to have the power of delay- 
 ing, and not that of permanently resisting, the legislative 
 measures approved by the primary representative assembly : 
 but if a chamber with really co-ordinate powers is wanted, 
 I think that the weight required for the conflicts it must 
 be prepared to face is most likely to be secured by some 
 method that will render it undeniably representative, 
 though perhaps in an indirect way, of the nation at large. 
 And of these two kinds of relations between the two cham- 
 bers, the former, as I have said, appears to me alone 
 adapted to Parliamentary government: the latter requires,
 
 478 ELEMENTS OF POLITICS CHAP. 
 
 I think, for its satisfactory working some such careful 
 separation of legislature from executive as is realised in 
 the " presidential " system of the United States of America. 
 4. So far I have supposed the functions of the two 
 chambers to be generally similar, even when their powers 
 are not equal. But a different arrangement has been sug- 
 gested as regards the Budget : and, perhaps in other than 
 financial matters, the legislative powers allotted to the 
 chambers might conveniently be made diverse in kind, to 
 some extent, by custom, if not by law. Thus, one or other 
 of the two might have the sole function of initiating 
 measures of a certain kind, or of modifying such measures 
 in detail. For instance, where the chief power of determin- 
 ing the substance of legislative changes admittedly belongs 
 to the House of Representatives, the Senate might advan- 
 tageously have a special responsibility for the work of mak- 
 ing the formal improvements from time to time required 
 in the law by removing ambiguities, inconsistencies, and 
 cumbrous superfluities and for the avoidance of formal 
 defects in new legislation. For this purpose legal experts 
 should be made senators, by nomination or ex officio, who 
 might form, alone or along with others, the chief legislative 
 committee of the Senate. 
 
 2. A similar diversity might be introduced in any 
 functions other than legislative allotted to the chambers. 
 Thus, if a general power of control over treaties with 
 foreign states otherwise than by criticism and inquiry 
 were given to the legislature, it may be appropriately con- 
 fined to an elected Senate constituted as I have above 
 suggested : since, from the longer duration and partial 
 renewal of this chamber, it would be more likely to main- 
 tain a far-sighted and consistent foreign policy than the 
 House of Representatives. 
 
 3. It may be suggested that the Senate should be con- 
 stituted a judicial tribunal for the trial of offences com- 
 mitted by public men of high position in violation of their 
 public trust and duties; the prosecution of such offenders 
 being assigned to the House of Representatives. Both
 
 xxiil TWO CHAMBERS AND THEIR FUNCTIONS 479 
 
 these arrangements were adopted, after the example of 
 England, in the constitution of the United States ; and the 
 judicial function of the Senate in particular is elaborately 
 and ably defended in Story's well-known work. 1 But, 
 granting that a special court of high dignity is required to 
 deal with offences of this class, and that to construct a 
 suitable tribunal for them is a matter of considerable diffi- 
 culty, it hardly seems a good solution of the difficulty to 
 give this judicial work to a chamber appointed primarily 
 for legislative purposes, most of whose members cannot be 
 expected to have had any judicial experience. I cannot 
 think that such a body is likely in any case to be a good 
 court of justice : and the party-system that now prevails in 
 states under popular government must tend to increase its 
 unfitness. I am more inclined to think that if it be 
 decided to constitute a special court of this kind the 
 function of selecting from time to time some of the mem- 
 bers of the required tribunal might be properly entrusted 
 to the Senate ; as it would be well qualified to supply the 
 element of political experience that such a tribunal ought 
 to possess. I shall have occasion to return to this question 
 at the conclusion of the next chapter, which will treat of 
 the judicial organ as a whole. 
 
 Further, the legislative powers belonging to the two 
 chambers jointly may be limited by the right of each 
 chamber separately to determine its rules of procedure. 
 This limitation is expedient, partly in order that each 
 chamber may be as free as possible to adopt and therefore 
 responsible for adopting the rules best fitted to secure 
 full and fair debate and prevent hasty resolutions, without 
 allowing mischievous obstruction and delay; partly in 
 order to avoid the necessity of subjecting the procedure of 
 either chamber to the control of an external judiciary. 2 
 
 Before concluding the discussion of the Legislative 
 Organ, it should be again pointed out that the legislative 
 
 1 Constitution of the United States, Part III. ch. x. 
 
 2 On the expediency of constitutional restrictions on this freedom of 
 each chamber, see Chap. XXVII. 5.
 
 480 ELEMENTS OF POLITICS CHAP, xxm 
 
 powers of both chambers together may be formally limited 
 by constitutional rules, by which certain matters are either 
 positively determined or excluded from the sphere of ordi- 
 nary legislation. Such rules will, of course, be somehow 
 modifiable ; but only by some extraordinary legislative 
 process, under conditions more difficult of fulfilment than 
 those of ordinary legislation, and probably involving 
 directly or indirectly the intervention of the citizens at 
 large. The expediency of this distinction between ordi- 
 nary and extraordinary legislation, and the best conditions 
 for the latter, will be discussed in Chap. XXVII. Further, 
 certain legislative powers may be reserved for or delegated 
 to local governments ; the reservation or delegation being 
 either (a) revocable at the discretion of the legislature, or 
 (b) not so revocable. These two cases will be discussed in 
 Chapters XXV. and XXVI., on Local and Federal Govern- 
 ment respectively.
 
 CHAPTEK XXIV 
 
 THE JUDICIARY AND ITS RELATION TO THE LEGISLATURE 
 AND THE EXECUTIVE 
 
 1. THE importance of the Judiciary in political construc- 
 tion is rather profound than prominent. On the one hand, 
 in popular discussion of forms and changes of government, 
 the judicial organ often drops almost out of sight ; on the 
 other hand, in determining a nation's rank in political 
 civilisation, no test is more decisive than the degree in 
 which justice as defined by the law is actually realised in 
 its judicial administration ; both as between one private 
 citizen and another, and as between private citizens and 
 members of the Government. To attain this result we 
 require legal knowledge and skill, impartiality, incorrupti- 
 bility, and independence in the persons forming the judicial 
 tribunals : also that such tribunals should be accessible to 
 all, and sufficiently numerous, and that no one should be 
 hindered, by Government or private persons, from seeking 
 judicial remedies for legal wrongs : accordingly, the judicial 
 process should be as simple, short, and inexpensive as 
 is consistent with adequate security for justice and ade- 
 quate provision for the correction of judicial errors ; at 
 the same time, vexatious litigation should be discouraged, 
 lest the remedies for social mischief prove worse than the 
 disease. I have not space to enter into the interesting 
 technical questions that arise, in trying to adapt judicial 
 procedure to the attainment of these partially incompatible 
 ends : but we ought to keep these ends in view in discussing 
 
 481 2 1
 
 482 ELEMENTS OF POLITICS CHAP. 
 
 the general characteristics of the constitution and working 
 of the judicial organ in such a governmental structure 
 as we have so far sketched out. 
 
 The general reasons for not allotting judicial and legis- 
 lative functions to the same organ need only be recalled 
 very briefly. The advantages of division of labour, which 
 become more important as the complexity and difficulty of 
 law increase with the complexity of society; the import- 
 ance of concentrating the main attention of the judge on 
 the impartial administration of law as it is ; the different 
 intellectual qualifications required for the making and for 
 the applying of laws ; these have been sufficiently dwelt 
 on in previous chapters. I have also mentioned the 
 advantage of securing impartiality in disputes between 
 legislators and private persons : this no doubt becomes 
 unimportant where popular government is in effective 
 working ; on the other hand, it is clear that numerous 
 representative assemblies are especially unlikely to possess 
 the qualifications required for the Judiciary. 
 
 This separation of functions, however, must be under- 
 stood with certain qualifications. Judicial experience, how- 
 ever insufficient by itself, ought to supply a valuable element 
 of the knowledge required for wise legislative changes. 
 Indeed, one advantage of constituting a Senate partly of 
 ex officio members is, that it might thus include a certain 
 number of persons who are l or have been engaged in 
 judicial work, whose aid ought to be peculiarly useful in 
 the work of freeing the law from formal defects, which we 
 have seen to be specially appropriate to the Senate. If 
 the Senate cannot be made available for this purpose or 
 perhaps in any case it would seem desirable to appoint a 
 permanent Law Council, 2 containing persons of judicial 
 experience. It should be the primary business of such a 
 Council to remove inconsistencies and ambiguities in the 
 
 1 Actual judges to whom this function is given would naturally have 
 less than a full burden of judicial work. 
 
 2 See a Plan for the Foi~mal Amendment of the Law of England, by T. E. 
 Holland, M.A., 1867.
 
 xxiv THE JUDICIARY 483 
 
 recognised authoritative statement of the law : but besides 
 this, it might from time to time serve as a channel for 
 bringing judicial experience to bear on legislation whenever 
 this experience clearly pointed to the expediency of material 
 changes in civil and criminal law. 
 
 But further ; as the varying characteristics of the social 
 relations which laws are designed to regulate can never be 
 completely foreseen by the legislature, it is impossible to 
 prevent the judges from exercising functions that go beyond 
 the mere application to particular cases of rules laid down 
 by the legislature, and practically involve the more precise 
 determination of the law itself. They have to apply rules 
 of law to cases that were not foreseen, and in reference to 
 which therefore the intention of the legislature is not clearly 
 declared ; and while it is generally their duty, under these 
 circumstances, to be guided as far as possible, when the 
 meaning of words is ambiguous, by inferences as to the 
 general design of the legislature drawn from other rules of 
 analogous import, it is still almost inevitable, and some- 
 times not undesirable, that in drawing such inferences they 
 should be swayed to a certain extent by their own views of 
 what is reasonable and expedient. 
 
 It does not necessarily follow that the court which has 
 to decide an unforeseen case should have the power which 
 English courts have of laying down a binding precedent 
 to govern all similar decisions hereafter. It may indeed be 
 questioned whether the legislature should not try to prevent 
 the judges from doing this, by declaring it the duty of a 
 judge to give to the words of the law what he thinks their 
 true meaning, without regard to previous decisions. This 
 would render feasible a separation of legislative from judicial 
 functions more complete than the English system admits, 
 would diminish the bad consequences of judicial mistakes, 
 and might perhaps make it possible for citizens generally, 
 other than lawyers, to know the main rules of law by which 
 they were incontrovertibly bound. But it would make it 
 impossible even for the highly-trained expert to foresee 
 decisions on points which a code or statute had left
 
 484 ELEMENTS OF POLITICS CHAP. 
 
 ambiguous; and it would seem that the greater certainty 
 attainable on details of law at any given time, that results 
 from judges being bound by precedents, outweighs any 
 advantages of the opposite system. 
 
 If the judges are to recognise as valid the precedents of 
 previous decisions, so that a certain amount of legislation 
 under the guise of interpretation is inevitable, the question 
 arises, What precedents are to have this binding force ? In 
 a large country, if justice is to be effectually accessible to 
 all, there must be a large number of tribunals with co- 
 ordinate jurisdiction, whether concurrent or locally divided ; 
 hence if the law is to be kept practically uniform over the 
 whole country, there must be a single final court of appeal 
 for all judicial work or for each separable part of it which 
 alone will have the power of finally determining disputed 
 points of law. It seems, however, desirable that judges of an 
 inferior grade should be provisionally bound by the decisions 
 of those of a superior grade, on points not decided by the 
 final court of appeal. 1 
 
 2. So far I have not supposed the legislature's power 
 of making laws to be confined by any legal limitations. But 
 we have already seen it to be possible in any community 
 and we shall hereafter see it to be necessary in a community 
 federally organised, if the terms of the federal union are to 
 have legal force and precision to restrict the powers of 
 any ordinary legislature within definite limits fixed by 
 constitutional rules, which can only be modified by some 
 extraordinary legislature or by some process more difficult 
 than that of ordinary legislation. It is further clear that, 
 if such constitutional rules are to have the force of law so 
 long as they are not modified, there must be some body 
 that has the function of deciding whether the ordinary 
 
 1 It does not seem reasonable that a tribunal should be bound by the 
 decision of a co-ordinate tribunal on a point not carried up to the final court 
 of appeal. But, to maintain a clear uniformity in the interpretation of the 
 law, it might be made the duty of a judge who definitely rejects the inter- 
 pretation of a co-ordinate judge, to communicate his difference, with its 
 grounds, to the court of appeal : which might then decide the point at 
 issue, whether the litigants appeal or not.
 
 xxiv THE JUDICIARY 485 
 
 legislature has not transgressed them in its legislation ; 
 and that this is prima facie a strictly judicial function. 
 There are, however, certain objections against assigning 
 this function to the judicial organ in a unitary state, which 
 will be more conveniently considered hereafter: 1 for the 
 present, therefore, I shall assume that the ordinary 
 legislature with or without 'the assent of the executive 
 has a legally unlimited power of modifying the rules 
 applied by the judiciary: and is not responsible for the 
 use of this power except to the electorate and to public 
 opinion. 
 
 But granting that the judiciary cannot question the 
 validity of any law duly made by the Legislature, 2 it may 
 still be the final authority for interpreting any and every 
 law that actually exists ; and therefore for determining any 
 disputed questions of constitutional no less than civil right, 
 so far, that is, as the constitutional rules in question are 
 strictly laws, and not merely dependent on custom and 
 convention. And it would seem that, in most cases, no 
 other body can be so well qualified to exercise this authority. 
 For instance, I conceive that the judiciary should decide 
 disputed questions as to membership of a legislative 
 chamber, especially when the chamber is elective, and 
 the election is alleged to have been vitiated by bribery, 
 intimidation, or other cause. Such questions eminently 
 require judicial impartiality ; and both reason and experience 
 would lead us to regard them as unfit to be decided by the 
 chamber itself or any committee of it ; owing to the habits 
 and sentiments of partisanship which cannot be excluded 
 from such bodies. 
 
 I conceive, however, that, notwithstanding any danger 
 of partisanship, it should be left to the chamber itself 
 either acting as a whole or through its chairman or a com- 
 mittee to administer judicially its own rules of procedure. 3 
 
 1 See Chap. XXVII. 4. 
 
 2 With the consent of the Supreme Executive, if the latter has a veto. 
 
 3 I am here assuming that the chamber is not bound by rules of procedure 
 constitutionally fixed, so as not to be modifiable by the ordinary process of 
 legislation.
 
 4 86 ELEMENTS OF POLITICS CHAP. 
 
 In particular, it should have power to enforce its rules of 
 order, by silencing or excluding disorderly members : since, 
 for the effective maintenance of order, it is necessary that 
 such penalties should be promptly administered, and no 
 external tribunal is likely to estimate the gravity of breaches 
 of order so well as the members of the chamber. Some 
 limitation, however, of the power of exclusion would seem 
 to be necessary, to prevent such a perversion of the repre- 
 sentative system as would take place, if this power of 
 excluding members were used so as to enable measures to 
 be passed which would have been rejected if the excluded 
 members had voted or vice versa. 1 Similarly, for the 
 maintenance of order, the chamber should also have the 
 right of forbidding and, if necessary, punishing the 
 intrusion of strangers : publicity of debate, therefore, 
 though it should be customary, should not be enforced by a 
 rigid rule : but there seems to be no adequate reason why 
 any attempts to intimidate or interfere with debates, other- 
 wise than by intrusion into the buildings under the control 
 of the chamber, should not be left to the judiciary to punish. 
 Attempts of this latter kind are chiefly to be feared at 
 crises of excitement : under ordinary circumstances, there is 
 no serious danger of legal conflicts arising between legislators 
 as such and private individuals, in which the impartiality 
 of judges might be strained. The case is different with the 
 executive. As we have seen, it is necessary, for the main- 
 tenance of law and government, to invest the executive with 
 rather extensive powers of interference with the liberty and 
 property of private citizens ; while at the same time the 
 security of the latter requires that these powers should be 
 exercised as far as possible under strict rules and limitations : 
 it is therefore important that the private individuals who 
 suffer from their exercise should have the right of appealing 
 as soon as possible to an independent and impartial law 
 court in the case of any alleged transgression of these rules. 2 
 
 1 See Chap. XXVII. 5, p. 568. 
 
 2 On the question whether the executive should have the right of 
 suspending these rules in exceptional emergencies, see Chap. XXII. 10.
 
 xxiv THE JUDICIAR Y 487 
 
 The chief constitutional regulations established with a view 
 to this result are, indeed, commonly recognised as the most 
 important protections of civil liberty ; and this is perhaps 
 the most convenient place to give a brief general account of 
 them ; since the most difficult questions as to the structure 
 of the Judiciary are connected with its function of main- 
 taining legal order against the guardians of that order 
 themselves. 
 
 3. First, we may note the need of rules reducing within 
 the narrowest possible limits the power of the executive to 
 imprison private citizens before trial. The most important 
 provisions under this head are (a) that no one shall be 
 arrested except on a definite charge of having committed a 
 certain offence ; (6) that the person arrested shall be brought 
 as soon as possible before a judicial functionary who shall 
 decide whether the charge is made on grounds prima facie 
 reasonable, and whether the offence charged is sufficiently 
 grave to render it needful to keep the accused in confine- 
 ment until the trial ; (c) that if the charge is of this grave 
 kind the accused shall be brought to trial as soon as possible, 
 and that if it is of a lighter kind, he shall be set at liberty 
 on bail. In order that these latter provisions may be 
 effective, it is clearly desirable that the judicial functionary 
 before whom the accused person is brought should be dis- 
 tinct from the executive and independent of its influence. 
 This independence is further required to secure an impartial 
 trial in any case in which the conduct of private persons 
 which is alleged to be illegal is certainly inconvenient 
 to the executive. It is also required to secure the effective- 
 ness of another of the constitutional bulwarks of freedom to 
 which I above referred, the right of suing or prosecuting 
 Government officials for any illegalities committed by them 
 in performance of their functions. For if the conduct 
 of one member of the executive had to be judged by 
 another, or by a judge practically under its control, the 
 esprit de corps which may be presumed to exist in the 
 executive as a body, and its natural tendency to resist any 
 restriction on its powers, would diminish the complainant's
 
 488 ELEMENTS OF POLITICS CHAP. 
 
 chance of obtaining an impartial hearing and adequate 
 redress. 1 
 
 How, then, is the required independence to be secured ? 
 Let us first assume that the judges are to be professional 
 experts ; since it can hardly be doubted that to obtain the 
 knowledge and skill required for the consistent and accurate 
 determination of legal rights and duties in particular cases, 
 continual professional practice as well as systematic pre- 
 paratory study are generally necessary in an advanced stage 
 of civilisation, in most if not in all departments of the 
 administration of law. We may further assume that these 
 professional judges will be arranged in grades, so that the 
 most important cases may be reserved for the ablest 
 intellects ; and especially the courts of appeal required to 
 correct judicial errors may command confidence by their 
 superior grasp and insight. It seems then clear, in the first 
 place, that to secure the judicial independence of the judges 
 in all grades they should be not simply dismissible or 
 appointed for short periods by the executive. On the 
 other hand, it is obviously undesirable to make the appoint- 
 ment and dismissal of judges a part of the regular business 
 of a numerous elected legislature. Such a body can hardly 
 be expected to estimate efficiently the special knowledge 
 and skill required for judicial decisions, and is likely to be 
 too much influenced by popular sentiment and party spirit ; 
 especially under parliamentary government, where judicial 
 independence is chiefly required for the protection of 
 minorities, since the relation of the heads of the executive 
 departments to the representative assembly would suffice to 
 restrain the former from encroachments likely to be resented 
 by the majority of the electorate. For similar reasons, 
 direct popular election of judges is even more open to 
 objection. On the whole, it seems best that judges in all 
 grades should ordinarily hold office during good behaviour ; 
 and that the power of dismissal required to meet cases of 
 misbehaviour or grave unfitness, should be normally exer- 
 
 1 Whether cases of this kind should be tried by the ordinary tribunals 
 will be considered later, 8.
 
 xxiv THE JUDICIARY 489 
 
 cised by a body of judges of the highest grade. The dismissal 
 of any member of this body ought to be a very rare event : 
 if the occasion for it should arise, any danger of undue 
 indulgence on the part of this high tribunal towards one 
 of its members might be met by constructing a special 
 court, in which members of the legislature form a majority, 
 with power to dismiss any member of the judiciary for 
 adequate reasons. The control of a tribunal so constituted 
 seems necessary, in the last resort, to secure that the judges 
 loyally apply the law laid down by the legislature. 1 
 
 The appointment as distinct from the dismissal of 
 judges of the lowest grade might be given to the executive, 
 without any danger to judicial independence: but promo- 
 tion by the executive from a lower grade to a higher may 
 be as dangerous to independence as the power of dismissal, 
 since it would be practically much easier for the executive 
 to reward judicial subserviency by promotion than to punish 
 its opposite by dismissal. On the other hand, it hardly 
 seems desirable to give the function of appointing judges 
 to one or more judges of the highest grade, since being 
 normally irremovable they could not be made effectively 
 responsible for bad appointments : while to prohibit pro- 
 motion altogether within the judiciary would sometimes 
 exclude the most competent persons from the higher posts. 
 The problem does not seem to admit of a perfectly satis- 
 factory solution : we can hardly avoid either some danger 
 to judicial independence, or some risk of inferior appoint- 
 ments ; hence, whatever solution is adopted, we shall have 
 to trust to public opinion especially the opinion of the 
 legal profession to minimise the consequent danger. 
 
 8 4. So far we have confined our attention to profes- 
 
 1 The English plan, by which the executive is empowered to remove 
 judges of the High Court on the recommendation of the two Houses of 
 Parliament, has some advantages : but the plan suggested in the text 
 seems preferable, because for reasons already explained (Chap. XXIII. 4), I 
 do not think it possible to secure that either chamber of the Legislature shall 
 generally speaking, be well adapted for exercising judicial functions. The 
 tribunal suggested in the text might also deal with certain charges brought 
 against executive officials. See 9 of this chapter.
 
 490 ELEMENTS OF POLITICS CHAP. 
 
 sional judges. But since the administration of justice 
 requires not only a knowledge of law but also knowledge 
 and sound judgment of the particular facts of the case 
 tried, it has been widely held that it tends to be improved 
 by the introduction of what is called a " lay " element i.e. 
 of persons other than professional lawyers into judicial 
 tribunals. Actually, such a lay element in various forms 
 has a large place in the judiciary of modern states : and as 
 its introduction is partly advocated as a solution of the 
 problem of securing judicial independence, we may con- 
 veniently now proceed to consider it. 
 
 The professional and lay elements may be associated in 
 judicial work in four distinct ways : 
 
 (1.) Legal experts may decide all questions with lay 
 
 advisers. 
 (2.) Lay judges may decide all questions with legal 
 
 advisers. 
 (3.) Both elements may blend in one tribunal, of which 
 
 all members have an equal voice in deciding all 
 
 questions. 
 (4.) The whole judicial function may be divided into 
 
 two parts, one allotted to the legal, and the 
 
 other to the lay element. 
 
 The first arrangement seems appropriate to cases where 
 the main difficulty lies in determining points of law, but 
 special experience is frequently required for the right 
 application of the law to the facts. On the other hand, 
 where the law to be applied is mostly clear and simple, so 
 that difficulties arise chiefly in ascertaining facts and judg- 
 ing of motives and intentions, there are strong economical 
 considerations in favour of the second plan : since the 
 services of unprofessional judges, if the demand made on 
 their time is not very heavy, may be often obtained 
 gratuitously or for a comparatively small expense. Where 
 there is no such preponderance of either kind of difficulty, 
 the choice would seem to lie naturally between the third 
 and the fourth method : and of these the latter seems 
 prima facie preferable, as it assigns to each part of the
 
 THE JUDICIAR Y 491 
 
 tribunal the sole responsibility for that part of the judicial 
 function for which it is deemed to be best qualified. The 
 division of work, again, may be either compulsory, or at 
 the discretion of the judge or of the parties ; and the two 
 elements of the tribunal may do their work either (1) 
 separately as when a scientific investigation required for 
 deciding a judicial issue is conducted by referees or (2) 
 in combination. 
 
 The arrangement last mentioned is that adopted in the 
 ancient and still surviving organisation of the judicature in 
 England, to some extent in civil cases, and universally in 
 criminal cases where the offence is grave. The law as 
 applicable to any case is determined by a judge possessing 
 legal knowledge and skill, who also in criminal cases 
 assigns the punishment within limits laid down by law ; 
 while the ascertainment of the facts of the particular case, 
 and the final decision on the issues raised, 1 devolve on a 
 jury of twelve persons, commonly selected for each parti- 
 cular case from a list of the householders of the district 
 possessing a certain property qualification some special 
 classes of persons being excluded. The impartiality of 
 the tribunal is supposed to be secured by the introduction 
 
 1 It seems important to recognise expressly three parts of the judicial 
 process, besides the assignment of the punishment (1) the determination 
 of the general rule, (2) the ascertainment of the facts in any particular case, 
 and (3) the application of the law to the facts. It is necessary to dis- 
 tinguish this last from the other two, because, even where there could be no 
 doubt or difficulty about it if the other two parts of the process have been 
 properly executed, still, if we consider the process as divided between an 
 actual judge and actual jury, having human defects and weaknesses, and 
 liable to the ordinary human perversions of motive, we can see that it may 
 make an important practical difference whether the application of the law 
 to the facts should be left to the expert who declares the law, or to the 
 twelve plain men who pronounce on the facts. And if the institution of 
 the jury is valued rather as a protection against Governmental encroach- 
 ments on private rights, than as an instrument for performing in the most 
 efficient manner the intellectual process involved in the judicial administra- 
 tion of law, there can be no doubt that the protection is more complete 
 if the jury has not only to supply the minor premiss of the legal syllogism 
 but also to pronounce the conclusion. Sometimes, too as wo shall see 
 the question of guilt falls as naturally within the province of the "plain 
 man " as any question of pure fact.
 
 492 ELEMENTS OF POLITICS CHAP. 
 
 of a sufficient element of chance into the selection, and by 
 the right of the litigants l to challenge any person selected, 
 for reasons assigned, and in important criminal cases to 
 reject a certain number without reason. This institution 
 is probably the most famous of the judicial bulwarks of 
 liberty to which I before referred ; and the question how 
 far this, or any similar admission of a lay element, is ex- 
 pedient, in the judiciary of such a society as we have been 
 contemplating throughout, is perhaps the most important 
 of all the questions that belong to this department of con- 
 stitutional construction. 
 
 I do not think it a question on which a clear general 
 decision can be reached, apart from a consideration of the 
 habits and sentiments prevailing in a particular country 
 at a particular time ; but it may be instructive briefly to 
 examine the arguments for and against it, distinguishing 
 different cases. 
 
 5. Firstly, in many disputes of legal right, arising 
 out of industrial and commercial relations, it is difficult to 
 apply legal principles properly however precise they may 
 be in themselves without special experience of the con- 
 ditions and customs under which particular businesses are 
 carried on : since such experience is required to judge 
 rightly of the motives, intentions, and implied under- 
 standings of the persons concerned. In such cases a com- 
 bination, in some form or other, of legal experts with men 
 of business possessed of the special experience required, 
 seems likely to furnish the best qualified tribunal. Further, 
 there are cases in which the estimate of culpability in- 
 volves more than merely knowledge of the rules of law and 
 ascertainment of particular facts ; it involves the applica- 
 tion of a standard which can never be quite definite and 
 can only attain adequate definiteness for practical purposes 
 through experience of similar affairs ; as when the ques- 
 tion is whether a man has taken " reasonable care " to 
 avoid causing mischief in certain circumstances. Here 
 again special experience of a particular business is some- 
 
 1 Including under this term prosecutor and defendant in criminal cases.
 
 xxiv THE JUDICIAR Y 493 
 
 times required; sometimes, again, what is needed is rather 
 a general experience of affairs which legal experts generally 
 are as likely as other people to possess, but of which any 
 one such expert might happen to be devoid. In the latter 
 case the best security for justice seems to lie in a tolerably 
 numerous tribunal : and as a numerous tribunal of legal 
 experts would be costly, and wasteful so far as legal 
 knowledge and skill are concerned, there is a strong 
 economic argument for some such institution as the 
 
 jury- 
 Some advocates, however, of the jury system go much 
 
 further ; they argue, broadly and generally, that for the 
 ascertainment of truth on the questions of fact that come 
 before a law court there is an intellectual superiority in 
 the judgment of " plain common sense," as compared with 
 conclusions reached by the " artificial and technical methods 
 of proof to which the legal mind is prone." Where, how- 
 ever, the right conclusion has to be drawn from a mass 
 of more or less conflicting testimony of witnesses of all 
 degrees of trustworthiness, supported by a web of infer- 
 ences, often necessarily subtle and complex, from circum- 
 stances of all degrees of evidential relevancy and importance, 
 it would seem that in such processes the skill derived 
 from special training and experience will be an advantage 
 difficult to counterbalance. A competent judge will norm- 
 ally be, through practice, an expert in the performance of 
 these processes, as well as in the more technical reasonings 
 by which the legal rules applicable to any given case are 
 determined : nor do I see any ground to suppose that his 
 practice in the latter kind of inference will interfere with 
 the empirical skill gained by his practice in the former. 
 It may be replied that the judge can and does give the 
 jury the full benefit of his skill in summing up the evi- 
 dence before their final deliberation. This is, no doubt, the 
 English practice, but it is a compromise hardly consistent 
 with a full belief in the superiority of plain common sense ; 
 and it is therefore not surprising that in the United States 
 the judges are generally " forbidden to charge a jury upon
 
 494 ELEMENTS OF POLITICS CHAP. 
 
 the facts of the case." * Nor does the compromise really 
 obviate the objection just stated. For firstly, if the 
 decision does not rest with the judge, it is probable that in 
 the very cases in which, on account of their difficulty, the 
 opinion of an expert would be of most value, the judge will 
 be inclined to avoid the responsibility of drawing the 
 balance between conflicting considerations, and will simply 
 confine himself to his recognised duty of impartially stating 
 these considerations. And secondly, even supposing the 
 conclusion of the judge to be always plainly stated, it does 
 not follow that the jury will adopt it ; indeed, to prove 
 this would prove too much, as it would show that the 
 intervention of the jury was no less superfluous than harm- 
 less. In fact, it is notorious that English advocates con- 
 tinually address appeals to juries which would have no 
 weight with experts, and that these appeals sometimes 
 prevail against the clearly indicated opinion of the judge. 
 
 A somewhat different turn is sometimes given to the 
 argument just discussed when used in special application to 
 criminal justice. Thus Bluntschli 2 says that the " principle 
 of the jury system " in this application is, that " no one 
 shall suffer punishment for an offence unless his guilt has 
 been made clear to the plain understanding and natural 
 sense of justice of men taken from the people at large." 
 This may either mean that the justice of the general rule 
 applied, or that the cogency of the deduction by which it 
 is applied, should be made generally intelligible. The 
 latter demand should, I think, be satisfied as far as possible 
 though it may often be impossible to satisfy it fully 
 since, if the cogency of the judicial deduction cannot be 
 made thus clear, the law is evidently wanting in " cog- 
 noscibility." But the former demand seems to be some- 
 times intended : and it would certainly seem that the 
 power of the jury to give a "general verdict," i.e. to 
 declare an accused person guilty or not guilty, instead of 
 merely declaring whether he has or has not committed 
 
 1 See Bryce, American Commonwealth, Part II. chap, xxxviii. 
 2 Allgemeines Staatsrccht, Bk. V. chap. iv.
 
 xxiv THE JUDICIARY 495 
 
 certain acts, has been used in England to secure the 
 satisfaction of this demand ; the jury have more or less 
 consciously applied not the actual law, which they could 
 hardly claim to know better than the judge, but what, in 
 their opinion, the law ought to have been. Now it is no 
 doubt to be wished that all penalties imposed by law 
 should be, so far as possible, approved by the moral senti- 
 ments of the community. But where the legislature is 
 adequately under the control of the citizens at large, an 
 irregular rectification of law by a small casual selection of 
 citizens is surely undesirable. If the law is to be nullified 
 in any district in which it happens to be unpopular, it 
 seems better that the right of nullification should be form- 
 ally allowed to a local legislature than that it should be fi^.; 
 assumed by a jury. If, on the other hand, it is admitted 
 to be necessary to repress by penal statutes conduct which 
 some local majority or even perhaps the common sense of ,, 
 persons who have not fully considered the matter does not 
 
 J 1 VI -I.V M. J ^ C 
 
 regard as gravely blameworthy, it seems more conducive to 
 the realisation of the legislature's designs that the applica- 
 tion of such laws should be entrusted to professional judges, ; 
 instead of being placed in the hands of " plain men " whose 
 " natural sentiment of justice " will irresistibly incline them 
 to dangerous indulgence. 
 
 The case is different where legislation is not effectively 
 under popular control ; here the jury or some similar 
 introduction of the lay element into the judiciary may be 
 useful in keeping the development of law in harmony with 
 the changing needs of the community. But in such a 
 government as we are now considering, I cannot but con- 
 clude that the intellect of an average judge is generally to 
 be preferred to that of an ordinary jury, as an instrument 
 for attaining right conclusions on questions of fact. At the 
 same time I have already admitted that there are certain 
 cases where the intervention of a jury of persons specially 
 experienced in the affairs with which the trial is concerned 
 may be of real value. 
 
 Another argument often used in favour of the jury
 
 496 ELEMENTS OF POLITICS CHAP. 
 
 relates to the moral qualification necessary for the adminis- 
 tration of justice. It lays stress on the greater chance of 
 incorruptibility in a judicial organ improvised ad hoc in 
 each trial by casual selection from the community at large, 
 as contrasted with a permanent professional organ. But if 
 jurymen are personally corruptible, it will be hardly possible 
 to prevent them from being bribed, at any rate if the case 
 is important and prolonged ; and, on the other hand, the 
 inducements to refrain from bribery can easily be made more 
 effective in the case of the judge. Indeed, the experience 
 of modern England seems to show that if judges are 
 adequately paid, the fear of social disgrace and professional 
 ruin is sufficient practically to exclude the danger of bribery 
 in their case. 
 
 And, on the other side, if both judge and jurymen are 
 not corruptible, it may be presumed that the former is more 
 likely to be free from unconscious bias than the latter : as 
 the performance of his daily duties will tend to give him an 
 exceptional habit of impartiality. Whereas jurymen will 
 tend to be unduly influenced by popular dislikes and 
 sympathies : and if they are mainly drawn from certain 
 classes, they are likely in civil controversies to have a bias 
 in favour of these classes as against others. It has been 
 said, 1 that in England " no insurer resisting a life policy, 
 no great company resisting a claim for an accident, no 
 lawyer or doctor suing for his bill, no gentleman contesting 
 a tradesman's charges, no landlord suing for a forfeiture, no 
 informer suing for penalties, no person in any way generally 
 unpopular, can depend on the impartiality of common 
 juries " : and though the statement is, I hope, too sweeping, 
 it can hardly be doubted that there is a considerable danger 
 of partiality in the directions indicated. 
 
 So far I have been considering the institution of the 
 jury as an instrument for obtaining right judicial decisions ; 
 but it may also be considered in another aspect which 
 may be called in a special sense political i.e. in respect of 
 its influence on the relations between the citizens and their 
 
 1 Brown, Dark Side of Tried by Jury, 1859.
 
 xxiv THE JUDICIARY 497 
 
 government. From this point of view it must be admitted 
 to have important advantages : but in a varying degree 
 according to the subject matter of the judicial procedure 
 in which it is used. In ordinary civil cases its main 
 recommendation is that a wide diffusion of the experience 
 of actually taking a part in governmental work of some 
 kind has a valuable educative effect on the citizens : it 
 tends to keep alive their political consciousness, and make 
 them regard the business of government, not as a mystery 
 beyond their comprehension and concern, but as their own 
 public business, the management of which they ought to 
 understand sufficiently to be able from time to time to 
 take a part in it. But though this is an argument for 
 giving some public functions if possible besides the 
 function of voting periodically for members of parliament 
 to some members of the class from which jurymen are 
 drawn, it is hardly a strong argument for giving them 
 judicial functions especially. 
 
 There is, however, a further argument in the case of 
 criminal justice : viz. that the function of condemning to 
 punishment especially capital punishment is liable to 
 involve the functionary in more or less odium, which from 
 time to time may reach an intense degree of unpopularity, 
 if for any reason the sympathy of the people in general is 
 enlisted on the side of the criminal. If, then, this odium 
 is entirely borne by a professional judge, it may accumulate 
 until it generates a dangerous amount of discontent against 
 the administration of the law. Whereas if the responsi- 
 bility of pronouncing the verdict is thrown on a tribunal 
 formed of a casual combination of private citizens, which 
 is resolved again into its elements when the verdict is 
 once given, their judgment is likely in the first instance 
 to cause less discontent even when it jars on popular 
 sympathies ; and any discontent that it may cause is likely 
 to be shortlived, and can hardly be a source of public danger. 
 
 There is a special kind of criminal trials in which the 
 jury system has been regarded with approval even by 
 thinkers who were fully alive to its defects as an instrument 
 
 2K
 
 498 ELEMENTS OF POLITICS CHAP. 
 
 for the ordinary administration of justice: viz. trials for 
 what are called " political " offences, i.e. for acts, whether 
 otherwise criminal or not, of which the alleged design is 
 to overthrow the government or to control its action, by 
 the exercise or threat of unlawful force. It is obviously 
 of special importance for security of impartial justice that 
 the tribunal which decides these cases should be independent 
 of the influence of the executive ; and we have seen it to 
 be difficult to secure this completely in the case of the legal 
 expert to whom the function of declaring the law must be 
 entrusted, without sacrificing the best mode of appointing 
 such experts. It seems, however, doubtful whether there 
 is a better chance of impartiality if the application of the 
 law is left to a jury, in a community in which the execu- 
 tive is directly or indirectly under popular control : since, 
 in such a community, party feeling is likely to run high, 
 and it will be very difficult to find jurymen who are not 
 strongly biassed either for or against the government. 1 
 
 To sum up : it seems to me that the weight of argument 
 is on the whole against the use of the jury in civil trials : 
 except in certain cases, in which it should be composed of 
 persons possessing some kind of special experience. As 
 regards criminal trials of importance especially for capital 
 offences the balance of argument seems to me at present 
 the other way: but perhaps we may predict that if 
 civilisation continues to progress, the arguments on the 
 negative side will be ultimately found to be decidedly the 
 stronger. 
 
 I may observe that the distinction above drawn between 
 the use of the jury in civil, and its use in criminal, cases 
 corresponds to the historical development of the institution : 
 since the civil jury remains almost 2 peculiar to England 
 
 1 I observe that this view of the inevitable partiality of juries, in 
 political trials, appears to be generally accepted by both political parties in 
 England at the present crisis (1888-90), though its application by each 
 party is different. 
 
 2 It finds a place in the constitution of Portugal ; and it has been intro- 
 duced from England into Scotland ; where, however, it is not so largety 
 used as in England, and is not thought to work so well.
 
 xxiv THE JUDICIAR Y 499 
 
 and her colonies, while the criminal jury has spread from 
 England to several other European countries. 
 
 For the requirement of unanimity in the verdict of a 
 jury it is hard to find even plausible grounds in civil cases. 
 It is commonly defended in criminal cases as a protection 
 of innocence : and it is doubtless better that a guilty 
 man should escape than that an innocent man should suffer 
 unmerited punishment : but jurymen generally are likely to 
 feel adequately the force of this argument for giving the 
 accused the benefit of the doubt : there is no reason, there- 
 fore, to suppose that where a minority refuses to condemn 
 it will more often than not be right in so refusing. To 
 require somewhat more than a bare majority for condemna- 
 tion is the utmost that seems defensible. 
 
 6. We may now proceed to notice briefly certain 
 other important differences in the machinery for realising 
 civil and criminal justice respectively, corresponding to the 
 difference of aims in the two cases. As we have seen, 1 in 
 civil actions the direct aim of the judicial intervention of 
 Government is to decide disputed points of private right, and 
 give adequate remedies for private wrongs. If, therefore, 
 any individual can obtain the satisfaction he requires other- 
 wise than by the intervention of Government, there is no 
 need that the latter should take place : indeed, it is obviously 
 better that the expense, trouble, and probable increase of 
 ill feeling which a formal public trial is likely to entail, 
 should be spared to both parties. Hence, it is desirable 
 that Government should encourage suitors to resort to arbitra- 
 tion ; and should enforce the decisions of an arbitrator if 
 he has been duly appointed and there is no ground for 
 impeaching his good faith in case either party refuse to 
 abide by the result of the arbitration. And when the 
 intervention of the judge is necessary, it should be limited 
 to the decision of disputed questions brought before him by 
 one or other of the disputants : it is therefore clear that 
 the manner of procedure in a civil action should be 
 litigious and not inquisitorial, and that the judge should not 
 1 See Chap. VIII. p. 115.
 
 500 ELEMENTS OF POLITICS CHAP. 
 
 initiate a civil action, or carry it on against the will of both 
 parties, or decide any issues of right not raised by the parties. 
 
 In all these respects criminal or penal justice presents 
 an important contrast. Punishments, as distinct from 
 damages, are inflicted for the prevention of offences, and 
 therefore primarily in the interests of the community : 
 and where they are inflicted (as is the commonest case) 
 for mischief that falls primarily on some private individual, 
 it is important at least unless the offence is slight that 
 the matter should not be settled by private compensation 
 to the individual. This result may be partly attained by 
 making it illegal to " compound a felony." But it seems 
 inequitable that the burden of bringing the offenders to 
 justice should be legally thrown on the person who haa 
 already suffered the mischief of the offence, or his nearest 
 relatives : nor is it desirable to rely entirely on revenge 
 which is an objectionable motive or safe to rely on public 
 spirit for the performance of this important duty : while, 
 again, it is not in most cases expedient that individuals 
 should be tempted to take up this invidious task as a 
 trade, for the sake of a pecuniary reward. 1 Under these 
 circumstances, the necessity for a public prosecutor or 
 investigator of crime appears incontrovertible. 
 
 It is not so clear whether the prosecution or investigation 
 of crime should be regarded as belonging to the executive 
 or to the judicial organ. As the business requires energy, 
 discretion, and skill more markedly than judicial impartiality, 
 it seems expedient that the officials engaged in it should be 
 under conditions in respect of dismissibility similar to 
 those of executive officials generally : also the work of 
 discovering the perpetrators of crime and proving their 
 guilt is naturally connected with the essentially executive 
 business of forcibly preventing and repressing crime. More- 
 
 1 There are only two cases in which the expedient of repressing mis- 
 chievous acts by "penalties" recoverable by "common informers" appears 
 to be admissible on special grounds : (a) in the case of offences at once diffi- 
 cult to discover and important to repress, and yet not directly mischievous 
 to private persons ; and (b) as a constitutional security in the case of 
 offences committed by public officials.
 
 xxiv THE JUDICIARY 501 
 
 over, on the assumption that a criminal trial is to take a 
 litigious form, and to be conducted as a dispute between 
 two parties, any close official connection between prosecutors 
 and judges is prima facie objectionable as tending to throw 
 suspicion on the perfect impartiality of the latter. On the 
 other hand, if the prosecution of crime be made a part of 
 executive business, there is some danger of its being 
 performed with undue partiality towards members of the 
 executive. To obviate this, it should be open to private 
 persons to prosecute judicial permission being obtained 
 if the public officials decline to do so, or even along 
 with them : and the power which seems necessary of 
 prohibiting prosecutions as vexatious should be vested in a 
 judicial and not in an executive organ. 
 
 It may, however, be doubted whether the litigious form 
 of procedure, which is proper to civil suits, ought to be 
 adopted in a criminal trial. Certainly a public prosecutor, 
 in presenting his case, ought not to show, and would be 
 generally condemned for showing, the partiality which is 
 tolerated as natural and inevitable in a private litigant. 
 Hence the litigious form of criminal procedure is open to 
 the objection that the litigants cannot really be on equal 
 terms : e.g. an advocate for the prosecutor would be severely 
 blamed for concealing evidence telling in favour of the 
 accused, while the opposing advocate would not be similarly 
 blamed for concealing evidence against him. Still, to secure 
 justice, an unbiassed judge who has no responsibility for the 
 prosecution seems indispensable, not only in the final trial, 
 but also to decide whether there are adequate grounds for 
 imprisoning the accused before trial : so far, therefore, the 
 litigious form of procedure seems inevitable, and it is difficult 
 to combine it satisfactorily with a procedure to any extent 
 inquisitorial. At the same time, it must be admitted that 
 where an accused person has in any case to be kept in 
 prison for some time before his trial, there is an obviously 
 convenient opportunity for a private inquisitorial investiga- 
 tion by a judge ; and that such an investigation is often 
 likely to be a more effective instrument for finding out the
 
 502 ELEMENTS OF POLITICS CHAP. 
 
 truth than a merely litigious procedure. Perhaps it should 
 also be admitted that the English dislike of inquisitorial 
 examination of accused persons is partly due to a confusion 
 between the sound principle that an innocent person should 
 be allowed every means of proving his innocence, and the 
 unsound principle that a guilty person should be allowed to 
 resist or evade attempts to prove him guilty. 
 
 I may note briefly the characteristics of criminal pro- 
 cedure at least in grave cases which seem to follow 
 properly from the sound principle just mentioned. The 
 accused person should be allowed complete information as 
 to the charges against him, full time for preparing his 
 defence, and the advice of experts. He should be allowed 
 to hear all the evidence given against him and to cross- 
 examine the witnesses personally or by counsel to make 
 the latter privilege completely effective, it seems desirable, 
 generally speaking, that only oral evidence should be ad- 
 mitted ; l unless the accused himself wishes to put forward 
 written testimony on his behalf. He should be allowed 
 to summon witnesses on his side who should be bound 
 to attend, and, if he wishes, to give evidence personally, 
 subject to cross-examination. As a final guarantee against 
 official oppression, his trial should be in a place to which 
 the public are normally admitted ; though exceptions to 
 this rule of publicity are needful in special cases, in the 
 interest of morality ; and the judge should always have 
 such powers of exclusion as may be necessary to maintain 
 order, and repress demonstrations of popular feeling danger- 
 ous to the independence of the tribunal. 
 
 7. A right of appeal against the decision of any court 
 of first instance should generally be allowed, in order to 
 correct mistakes and preserve uniformity in the judicial 
 interpretation of law. It is a more difficult question how 
 far an appeal should be allowed from a decision on a ques- 
 tion of fact, which does not form a precedent. In parti- 
 cular, such an appeal does not harmonise well with the 
 jury system ; except in cases where there is fresh evidence, 
 
 1 I.e. in the final trial.
 
 THE JUDICIARY 503 
 
 of which the absence in the first trial was not due to the 
 negligence of the party whom it favours. For it hardly 
 seems consistent with the principle of the jury system to 
 appeal from a jury to a court of professional judges ; while, 
 if the appeal be made to a second jury, it is hard to see 
 why this should be generally expected to judge more cor- 
 rectly than the first. It would seem therefore, that, in 
 civil cases at least, a decision of a jury should not be set 
 aside by a court of appeal because it is against the weight 
 of evidence, except when an unmistakable and scandalous 
 miscarriage of justice has occurred. In any case, the in- 
 dependence of the court that has the power of overruling 
 the jury should be guarded with especial care : and, if the 
 principle of the jury system is thoroughly maintained, the 
 result of the overruling must be not a decision on the 
 question at issue, but a new trial by another jury. 
 
 The question of appeal on other than purely legal 
 issues in criminal trials is beset with peculiar difficulties, 
 especially where the punishment is severe, and such as 
 either could not, or practically would not, be increased on 
 appeal : since, in such cases, one would expect criminals 
 always to appeal, unless prevented by cost : while if cost 
 alone prevented the appeal, the inequality between rich 
 and poor would be flagrant. A widely accepted way of 
 meeting this difficulty is not to grant a formal right of 
 appeal to convicted criminals, but to give to a high exe- 
 cutive official the power of remitting or mitigating punish- 
 ment at his discretion ; a power which can also be used in 
 cases where the infliction of the full legal punishment 
 would be for special reasons impolitic, as well as in cases of 
 judicial error. The objections to this are (1) that an 
 executive individual or council is not likely to be parti- 
 cularly well qualified for difficult judicial functions, and 
 (2) that the executive thus acquires a dangerous power of 
 weakening the restraints of law. On these grounds it 
 seems desirable that if this power be vested in the execu- 
 tive its exercise should be in some way subject either to 
 judicial approval or to the sanction of parliament : judicial
 
 504 ELEMENTS OF POLITICS CHAP. 
 
 approval being required when the " pardon " or commuta- 
 tion of punishment is granted on strictly judicial grounds, 
 parliamentary approval direct or indirect when it is 
 granted on extrajudicial grounds. The latter kind of 
 intervention should, however, be extremely rare, lest the 
 deterrent effect of legal penalties be dangerously weakened ; 
 and the initiative should in no case be taken by parliament, 
 so that the responsibility for the exceptional procedure 
 may be concentrated on the executive. 
 
 Finally, the consideration of expense renders it expedi- 
 ent to deal with cases of minor importance in a more 
 summary manner, with a procedure in which simplification 
 for the sake of economy overrides to some extent precaution 
 against error. The same consideration may reasonably 
 prevent the separation of executive and judicial functions 
 from being carried out to the extent that would otherwise 
 be desirable. 
 
 8. So far I have taken note of the differences of 
 grade in the judiciary required on grounds of economy 
 tribunals of the lowest grade being confined to cases of 
 minor importance ; and also of the differences in organisa- 
 tion corresponding to the fundamental distinction between 
 civil and criminal procedure. It remains to consider how 
 far any further specialisation of judicial work and machinery 
 is expedient. It is obvious that if a lay element, qualified 
 by special experience, is introduced into the tribunals, they 
 must be so far different for different departments of busi- 
 ness : but it does not follow that the legal element, even 
 of these tribunals, need be similarly restricted. The chief 
 arguments for specialisation, here as in other matters, are 
 that it renders possible a completer adaptation of the 
 worker to his work, and tends to increase the skill derived 
 from practice : on the other side, we have to take into 
 account difficulties in defining the competence of different 
 courts, and the waste of labour and expense entailed either 
 by disputes about competence or by the necessity of break- 
 ing up a complicated dispute and dividing its naturally 
 connected parts among different tribunals. In some cases,
 
 xxiv THE JUDICIARY 505 
 
 of course, the dividing lines are much easier to draw than 
 in others : e.g. questions of divorce or of electoral right are 
 easily separated from other matters of legal controversy, 
 but it is difficult to find a definition of commercial transac- 
 tions which will distinguish them in a clear and intelligible 
 manner from other transactions. In any case it seems 
 desirable, in order to maintain consistency in the administra- 
 tion of the law, that there should be one strong Supreme 
 Court, with the power to correct errors committed by other 
 tribunals in the general definition of civic rights and 
 duties. 1 
 
 A question of great importance that comes under this 
 head is whether there should be special " administrative " 
 courts 2 for disputes of right between governmental officials 
 and private persons. For some disputes of this class there 
 certainly seems to be no need of special judicial machinery : 
 e.g. disputes as to pecuniary claims in respect of taxes or 
 otherwise, made on private individuals in behalf of the 
 public, or similar claims made by individuals on the State, 
 in consequence of contracts between them and the Govern- 
 ment. There is no reason for withdrawing the decision 
 of such questions from the tribunals that deal with the 
 mutual pecuniary obligations of private persons. 3 The case 
 is different when damages are claimed or punishment de- 
 manded for illegal violations of private rights by executive 
 officials. "Where, indeed, the alleged offences are committed 
 by officials either avowedly not acting as such, or palpably 
 misusing their official position for illegitimate private pur- 
 poses, it again seems clear that it may be left to the 
 ordinary tribunals to punish them, and to exact adequate 
 
 1 Such a court need not necessarily have the power of deciding cases on 
 appeal : it may have only the power of cancelling decisions arrived at by a 
 process involving a material error in law. 
 
 2 Tribunaux Administratifs. 
 
 3 It does not follow that the public should have no special advantages in 
 such litigation, to balance the force of self-interest that must be expected 
 continually to prompt private encroachments on public rights. But these 
 advantages should be carefully denned by law, not secured by any partiality 
 in the tribunals that apply the lavr.
 
 506 ELEMENTS OF POLITICS CHAP. 
 
 reparation for the mischief caused by them. It is only 
 where a wrong is alleged to have been committed by an 
 official bona fide discharging his official duties, that the 
 expediency of referring the question to the ordinary courts 
 becomes doubtful. 
 
 In admitting this doubt, I do not lay stress on the 
 danger which seriously alarms some foreign publicists 
 of the conflicts of authority between the executive and the 
 judiciary that must be expected to result from giving to 
 the latter the function of sitting in judgment on the 
 former. Such conflicts are doubtless to be regretted : but 
 if the executive is to be kept effectively within legal limits 
 which has seemed indispensable it must meet with the 
 resistance of some independent body when it transgresses 
 these limits: and the evils of conflict are likely to be 
 minimised if the independent resisting body has simply 
 the judicial function of interpreting law, and no call or 
 excuse to interfere with the exercise of the discretion that 
 the law has assigned to the executive. Any impulses on 
 the part of the judiciary to usurp a control over the dis- 
 cretion of the executive will ordinarily be easy to check by 
 further legislative definition of that discretion : in the last 
 resort, the power of dismissing judges, that I have proposed 
 to reserve to a body in which members of the legislature 
 form the majority, would suffice to overcome any obstinate 
 attempts at usurpation. 
 
 My fear is rather that a tribunal not specialised by 
 containing as one element persons who have had experi- 
 ence of executive work will hardly be well qualified to 
 interpret the limiting rules of law wherever a somewhat 
 indefinite standard has to be applied. For instance, if the 
 question is whether an official had reasonable cause for 
 arresting a suspected criminal without a warrant, detaining 
 a ship as unsea worthy, or breaking up a public meeting, it 
 seems more likely that a just decision will be arrived at by 
 a court including persons who have had official experience 
 of somewhat similar matters : though to secure the inde- 
 pendence and impartiality of the court, it is important
 
 xxiv THE JUDICIARY 507 
 
 that such persons should not be actually members of the 
 executive at the time. There is, however, a considerable 
 difficulty in constructing a tribunal of this kind that will 
 command general confidence, and not be widely suspected 
 of undue bias in favour of the executive. If this difficulty 
 be found insuperable, it may be necessary, for the effective 
 performance of governmental work, to give the executive 
 somewhat wider legal powers than it ordinarily requires ; 
 trusting to public opinion and parliamentary criticism to 
 keep its exercise of these powers within somewhat narrower 
 limits than those enforced by the judiciary. 1 
 
 9. A cognate question is raised by the need of a 
 tribunal for dealing with charges of official misconduct, of 
 which the mischief falls on the public, and does not give 
 rise to a private claim for damages. Where the alleged 
 offender holds his post " during pleasure " of a superior, and 
 the offence charged is such as will be sufficiently punished 
 by dismissal from employment, or some lighter disciplinary 
 penalty which the ordinary official superior can inflict, the 
 need of a formal judicial procedure does not arise ; but if 
 the offender's tenure is on " good behaviour," and he refuses 
 to accept dismissal, or if the gravity of the offence calls for 
 a severer penalty than dismissal, some judicial process is 
 obviously required; the only question is whether it should 
 be conducted by an ordinary court, or a special one, com- 
 posed in whole or in part of experienced officials. The 
 necessity of special military tribunals to punish breaches of 
 military discipline is universally recognised ; here, however, 
 there is a peculiarly intense need of strict subordination 
 and prompt punishment, and a frequent impossibility of 
 having recourse, at least without intolerable delay, to 
 external tribunals ; reasons which do not ordinarily apply 
 in the case of the civil service. In the latter case the 
 question seems more doubtful so far as punishment going 
 
 1 It should be observed that a right to receive services from executive 
 officials does not necessarily imply a right to bring actions against such 
 officials when the services in question are imperfectly rendered or improperly 
 withheld. In the case of some governmental services e.g. the relief of 
 indigence it would be palpably inexpedient to grant this latter right.
 
 508 ELEMENTS OF POLITICS CHAP. 
 
 beyond dismissal is concerned ; and the answer to it seems 
 to depend on the degree of precision with which the 
 official misconduct requiring punishment can be defined. 
 Certainly the mere requirement of special penalties for 
 breaches of official duty does not in itself involve a require- 
 ment of specially constituted tribunals ; ordinary judges 
 might be trusted to administer such penalties, and to 
 understand that faults of omission and commission which 
 are venial in private persons e.g. breach of confidential 
 secrecy become grave offences in the case of officials. The 
 question rather is, whether the kinds of gross neglect or 
 corrupt misuse of official power or other flagrant postpone- 
 ment of public to private interests, for which severer 
 penalties than dismissal seem to be necessary, are in fact 
 so "various in their character and so indefinable in their 
 actual involutions that" though "easily understood by 
 statesmen " it " is almost impossible to provide systemati- 
 cally for them by positive law." ] So far as this is clearly 
 the case, it would certainly seem that justice and the public 
 interest require that such offences should be referred to a 
 specially constituted tribunal, adequately supplied with the 
 requisite experience of executive as well as judicial work. 
 At the same time, a liability to punishment beyond dis- 
 missal, for offences that elude legal definition, is so formid- 
 able a risk to attach to the service of government and so 
 open to abuse in party conflicts that I should hesitate to 
 admit the need of it, without more proof than I have yet 
 seen adduced. 
 
 The case is different with dismissal even if accompanied 
 with permanent exclusion from the public service : since 
 the official on whom this penalty may be inflicted by a 
 judicial process, but not otherwise, has at any rate a securer 
 tenure than most employees in private businesses. And for 
 this purpose it would not seem difficult to construct a 
 suitable tribunal, of the kind above indicated so far as 
 subordinate officials are concerned. But the phrases I have 
 above quoted are applied by Story to the more highly 
 
 1 Story, Constitution of the United States, Book III. ch. x. 762.
 
 xxiv THE JUDICIARY 509 
 
 placed functionaries, for whom the process of impeachment 
 before the Senate is mainly provided in the constitution of 
 the United States ; and certainly the danger of official 
 misconduct, at once grave and difficult to define with pre- 
 cision beforehand, seems to increase with the extent of the 
 power placed in the hands of a functionary. At the same 
 time the difficulty of finding a tribunal at once of adequate 
 strength and impartiality, and adequate insight, seems to 
 increase in equal or even greater ratio : while if judicial 
 forms came to be used without judicial impartiality, as a 
 method of party warfare, the remedy might prove worse 
 than the disease. Further, it is not clear that such a 
 tribunal is needed under Parliamentary Government for the 
 repression of offences of this kind that may be committed 
 by the heads of executive departments, since these func- 
 tionaries will be practically disinissible by Parliament 
 supported by the people ; and the loss of reputation that 
 would be caused by such misconduct as would justify 
 condemnation by a tribunal, would most probably lead to 
 the retirement of the offending functionary. The case is, 
 however, different where the supreme executive is appointed 
 for a fixed period and is not dependent for its tenure of 
 office on a parliamentary majority ; in this latter case it 
 would seem that the heed of some process for getting rid of 
 high officials guilty of grave misconduct may be occasionally 
 very urgent, so that the advantages of establishing a 
 tribunal before which they may be impeached outweigh 
 the disadvantages. 
 
 Supposing that it is decided to establish such a tribunal, 
 it might properly be made identical with that before sug- 
 gested for the ultimate control of the judiciary. It should 
 accordingly consist of a small number of persons, partly 
 judges of the highest grade and partly members of one 
 or both legislative chambers, elected by their respective 
 chambers in some way that would secure a proportional 
 representation of different sections. I say " one or both " 
 chambers, because I think that the function might with 
 advantage be given to the Senate alone as being more
 
 5io ELEMENTS OF POLITICS CHAP, xxiv 
 
 likely to contain and elect statesmen of ripe experience and 
 judicial temper provided that the Senate is so elected as 
 to possess adequate representative weight. In any case the 
 element contributed by the legislature which should form 
 the majority in the tribunal might be expected to bring 
 experience of political business, and to counteract any 
 tendency on the part of the judges to apply too technical 
 methods to the case ; while it might be hoped that the 
 judicial element would prevent the matter from being 
 decided by a mere party vote.
 
 CHAPTEE XXV 
 
 LOCAL AND SECTIONAL GOVERNMENT 
 
 1. EVEN in the larger modern states, if of the unitary 
 type, the greater part of the supreme decisions in the work 
 of government are normally made in a city selected as a 
 political centre. It is here that the supreme legislature 
 usually meets, and the courts that finally decide doubtful 
 points in the interpretation of the law ; and the superior 
 officials in most executive departments ordinarily transact 
 business here. Still, as we have seen, to prevent excessive 
 cost or delay in the administration of justice an adequate 
 provision of local tribunals is required. Similarly, most 
 internal executive functions, whether coercive or industrial, 
 obviously need officials locally dispersed, policemen and 
 soldiers for the maintenance of order, collectors of taxes 
 direct and indirect, managers of roads and public land of 
 all kinds, postmasters and other officials occupied in con- 
 veyance and communication, relieving officers, sanitary 
 inspectors, and so forth. In speaking, however, of " local 
 governments " in a unitary state, we chiefly mean organs 
 which, though completely subordinate to the central 
 legislature, are independent of the central executive in 
 appointment and, to some extent, in their decisions, and 
 exercise a partially independent control over certain parts 
 of public finance ; and in the present chapter I shall 
 confine my attention mainly to such partially independent 
 organs. 
 
 The primary reason for this local independence is, that 
 
 5"
 
 512 ELEMENTS OF POLITICS CHAP. 
 
 it is required to realise the full advantages of that reaction 
 of the governed on the governing organs which represent- 
 ative or responsible government seeks to bring about. Such 
 advantages may lie in the direction either of greater 
 efficiency or of greater economy. First, as we saw, the 
 theory of responsible government rests on the principle that 
 the interests of any group of governed persons will be most 
 safely entrusted to governing persons whom they have the 
 power from time to time to dismiss, directly or indirectly. 
 It is an obvious inference from this principle that govern- 
 mental functions which affect solely or mainly the inhabitants 
 of a limited portion of a state should be placed under the 
 special control of this section of the community ; in order 
 that the criticism of this section, backed by the power 
 of appointment and dismissal, may bring about a closer 
 adaptation of administrative activity to its peculiar needs. 
 Especially in matters such as education and poor-relief in 
 which valuable aid can and should be given to governmental 
 work by the voluntary efforts of private persons, we may 
 expect to secure important gains by localising the control 
 of the electorate over the work. Again, so far as any 
 class of governmental services are rendered exclusively 
 or mainly to a group of persons who live within a certain 
 district, it is obviously equitable to throw the whole or main 
 expense of such services on these persons ; and so far as 
 this expense cannot conveniently be met by payments 
 voluntarily made by the recipients of the services, the 
 comparison of cost with utility is likely to be more 
 accurately performed if the financial management of this 
 department of governmental business is entrusted to a 
 separate locally-elected organ. 
 
 But there are other reasons why a vigorous development 
 of local government is important, if not indispensable, to 
 the effective working of representative institutions in a 
 community as large as most modern states are. Over- 
 centralisation, in such a community, introduces two opposite 
 dangers. In the first place, if the only action that an 
 ordinary citizen is called upon to take, in reference to
 
 xxv LOCAL AND SECTIONAL GOVERNMENT 513 
 
 public affairs of any great interest or importance, is that of 
 voting at intervals of several years, as a unit in a group 
 of many thousand electors, for a member of the central 
 legislature, or even for the head of the executive, there 
 is a danger that the control of the citizens generally over 
 their government will become slack and ineffective ; so 
 that their exercise of the vote will be especially liable to 
 be perverted by the sinister influences which we have 
 before examined. But again, the same cause that tends 
 to render the political consciousness of the ordinary citizen 
 too languid at ordinary times also tends to increase the 
 risk from occasional gusts of discontent and excitement, 
 causing unreasonable expectations and complaints of govern- 
 ment ; since the mass of the community cannot but lack 
 that general diffused knowledge of the real nature of 
 governmental business, and the conditions and limitations 
 under which it is carried on, which results from being 
 brought into intimate social relations with the persons 
 actually responsible for it. In short, whatever " educative " 
 value is rightly attributed to representative government 
 largely depends on the development of local institutions. 
 
 We must also take into account the danger of over- 
 loading the central government with work. The importance 
 of this danger grows in proportion as a more extended 
 view is taken of the proper functions of government ; if the 
 tendency actually operative in England towards increasingly 
 extensive and complex governmental interference is in 
 the main justifiable as we have seen reason to think it 
 becomes increasingly important that the work to be done 
 should be carefully distributed among different organs, so 
 that none may be overburdened. 
 
 On the other side, we have to reckon the economic and 
 other advantages of having similar matters everywhere 
 managed on a single uniform plan. We have also to con- 
 sider the probability that both the central government and 
 its critics as compared with local governments and critics 
 will have the superior enlightenment derived from greater 
 general knowledge, wider experience, and more highly-trained 
 
 2L
 
 5H ELEMENTS OF POLITICS CHAP. 
 
 intellects ; and we have to consider the greater danger in a 
 small locality that the sinister influence of a powerful 
 individual, or corporation, or combination of persons with 
 similar interests, may predominate to the detriment of the 
 public. The force of these considerations will naturally 
 vary with different circumstances, such as the condition 
 of the arts of industry, the size of the local areas to which 
 separate organs of government are allotted, the ease or 
 difficulty of communication between different parts of the 
 territory of the State. Moreover, the practical conclusion 
 to which these considerations point may often be not 
 centralisation pure and simple, but a combination of local 
 and central organs or of organs representing smaller and 
 larger areas respectively in the same department of 
 governmental work: the organ representing the smaller 
 area having the management of details, while the deter- 
 mination of principles and general supervision are left to 
 the government of the larger area. 
 
 This division of labour, however, is often difficult to 
 arrange ; and the difficulty is increased when the question 
 arises of using the organs of local government, as subordinate 
 organs of the central executive, for the performance of 
 functions which are of national rather than sectional 
 interest such as the enforcement of obedience to laws 
 passed by the central legislature. On the one hand, it may 
 be obviously inconvenient and uneconomical to divide the 
 local business of government between two sets of organs, 
 the one independent of the central executive and the other 
 strictly subordinate to it ; while yet, if this is not done, the 
 independence of the locally- appointed organs is liable to 
 interfere with the harmonious performance of executive 
 functions. 
 
 Finally, we have to note that the allotment of any con- 
 siderable independent powers to local organs of government 
 is like any other division of authority liable to be a 
 source of danger at crises : since local disaffection may find 
 in these organs a ready-made machinery for organising 
 resistance to the central government.
 
 xxv LOCAL AND SECTIONAL GOVERNMENT 515 
 
 2. It is by balancing the different considerations 
 above given that the separation of governmental functions 
 into central and local, and the local limits of the localised 
 independent functions, are to be determined ; so far as 
 they can be determined apart from the special historical 
 conditions of the particular state, on the assumption that 
 the community in question is tolerably homogeneous 
 and adequately united by common national sentiments. 1 
 Actually, in determining the divisions and subdivisions of 
 districts, historical conditions will rightly be allowed great 
 influence ; on account of the importance of respecting as 
 far as possible traditional sentiments of community and 
 habits of co-operation especially in states formed by the 
 union of previously independent or semi-independent com- 
 munities. Apart from historical associations, convenient 
 local divisions are sometimes decisively indicated by physical 
 boundaries such as the intervention of seas or mountain 
 ranges or by marked differences in the density of the 
 population, exemplified by the current distinction between 
 city and country. The close-packed inhabitants of a city 
 have special need of more elaborate provision for water, 
 light, drainage, and of fuller precautions against mutual 
 mischief of various kinds ; they have an almost exclusive 
 interest in the paving and lighting of the streets and 
 bridges of the city ; and they have no direct interest in 
 any regulations required for agricultural industries. It is 
 therefore convenient to take cities as separate districts for 
 many purposes of local government ; though the lines of 
 separation must often be rather arbitrary, as industries 
 other than agriculture extend beyond urban limits, and 
 variations in the density of population are gradual. Indeed, 
 the determination of districts for local government must 
 almost always be a somewhat imperfect compromise : as the 
 arrangement fittest for some purposes can hardly fail to be 
 less suitable for others ; while at the same time, the com- 
 plexity arising from a combination of several different plans 
 
 1 The effects of heterogeneity due to historical causes will be further 
 considered in the following chapter.
 
 516 ELEMENTS OF POLITICS CHAP. 
 
 of division is likely to be inconvenient. Moreover, the divi- 
 sion abstractly most convenient is likely to vary continually 
 with changes in the density of population, changes in the 
 means of communication, 1 and other changes in the arts of 
 industry, rendering scientific knowledge and systematic 
 management more important than before in one or other 
 branch of governmental action. 
 
 As regards the size of governmental areas, it may be 
 noted that the smaller any such area is, the greater will 
 generally be the educative effect of the control of its in- 
 habitants over their government ; 2 especially if the divisions 
 are natural, so that an effective esprit de corps tends to 
 exist within each group of persons thus divided off. At 
 the same time, the more important the work that is 
 assigned to the independent activity of local authorities, the 
 more necessary it is that the area should be large enough 
 to furnish an adequate supply of persons competent to 
 direct and criticise this activity : also, districts should be 
 sufficiently large to bear any ordinary burden of varying 
 expenditure without excessive strain. Moreover, by in- 
 creasing the area we diminish the danger of the predomin- 
 ance of the sinister interests of any one individual or class ; 
 thus in England a rural district that has important inde- 
 pendent powers should be, if possible, large enough not to 
 present the dilemma of either giving overwhelming in- 
 fluence to a single large landowner, or rendering him a too 
 easy victim of democratic oppression. 
 
 The division of governmental functions will partly 
 depend on the division of areas, as it will properly vary 
 with the size of the district. Apart from this considera- 
 tion, we may say generally that the matters assigned to 
 independent local organs should be those in which local 
 separation of interests is most clearly marked, local know- 
 ledge most important, the need of uniformity and system 
 
 1 E.g. it has been greatly altered by the introduction of railways. 
 
 2 One point of importance in the determination of local areas is the 
 question of the desirability of direct government by the aggregate of 
 citizens. This will be more appropriately considered in Chap. XXVII.
 
 xxv LOCAL AND SECTIONAL GOVERNMENT 517 
 
 least evident, and the co-operation of private and govern- 
 mental agencies likely to tell most, care being at the 
 same time taken to avoid any formidable danger of local 
 class-injustice. Where the interests concerned are clearly 
 common to all parts of the State as is mostly the case in 
 the management of foreign relations or where the ad- 
 vantages of system and uniformity are overwhelming as 
 in military matters, postal communication, provision or 
 regulation of currency the control over the administration 
 should clearly be national and not local. On the other 
 hand, where the interests affected by governmental action 
 have definite local limits, there is a prima facie reason for 
 a partially independent organ of local government ; but 
 this reason may be outweighed by others, and even where 
 it is decisive its application is not always clear ; since, as 
 the separation of local interests is rarely complete, and is 
 very various in degree, a carefully adjusted co-operation of 
 local and central organs is often required to attain the 
 best results. 
 
 3. It will be well to give one or two illustrations of 
 the complex and varying considerations that have to be 
 taken into account in determining the division of functions. 
 To begin, the expense of paving and lighting the streets of 
 a town should be thrown on those who reside in it, and 
 the management of the business correspondingly localised ; 
 for though the resulting advantages will be partly shared 
 by travellers and persons who make a temporary sojourn in 
 the town, this will only be the case to a minor extent, and 
 its effect seems fairly compensated by the contributions 
 which such persons will indirectly make to the material 
 prosperity of the town by their purchases from innkeepers, 
 shopkeepers, etc. But the case of a highway between two 
 towns is less clear ; for though it is likely to be more used 
 by the inhabitants of these towns than by other persons, 
 it may be also in regular use as a part of the instrument 
 of transit connecting remoter places. Hence, if the plan 
 of defraying the expense by levying tolls on the carriages 
 that use the road is abandoned as uneconomical, owing
 
 518 ELEMENTS OF POLITICS CHAP. 
 
 to the expense and loss of time involved in collecting the 
 tolls it will be reasonable that larger and smaller districts 
 should combine to undertake the expense and management 
 of such roads. Similarly, the management of natural 
 resources forests, natural waterflow, unappropriated land 
 in general is usually of special interest to parts of the 
 community ; at the same time, the general interest of the 
 whole community in their good administration is usually 
 too strong to render it safe to abandon these matters 
 entirely to local control. 
 
 The incompleteness of the separation of interests which 
 we are considering assumes a different aspect in the case 
 of the sanitary intervention of Government one of the 
 most important functions of local authorities in the present 
 stage of science and civilisation. The sanitary state of 
 any district is a matter of serious concern to its neighbours, 
 owing to the tendency of many diseases to spread ; but the 
 prevention of this diffused mischief may fairly be deemed 
 to be not a positive service for which other districts ought 
 to pay, but rather a part of the general negative duty of 
 non-interference, which each individual, or group of indi- 
 viduals acting corporately, owes to all other individuals 
 and groups. Hence the expense of such provision as 
 should be made out of public funds for sanitary purposes 
 may reasonably be thrown on the district primarily bene- 
 fited by it ; and, while its management in ordinary cases 
 should be correspondingly localised, it still seems desirable 
 that the central government should exercise a supervision 
 over the local authorities, and have the power, in case of 
 their default, to intervene and do the required work. 
 Further, where the diffusion of disease among human 
 beings or useful animals is likely to be rapid and danger- 
 ous, so that promptness and uniformity are specially neces- 
 sary, the central government should have the power of 
 intervening, without giving time for the local authorities 
 to neglect their duty. For similar reasons, it seems ex- 
 pedient that central and local governments should have 
 concurrent powers of taking measures for the extermina-
 
 XXV LOCAL AND SECTIONAL GOVERNMENT 519 
 
 tion of noxious plants and insects. On the other hand, 
 the prevention of mischief from fire may ordinarily be left 
 altogether to the local organs. 
 
 The grounds for co-operation between organs of govern- 
 ment representing respectively larger and smaller areas may 
 be illustrated by the important matter of poor-relief. I 
 have already mentioned poor-relief as a case in which the 
 efficiency of the action of government may be materially 
 assisted by the voluntary activity of private citizens ; 
 which is more likely to be stimulated if the responsibility 
 for the operations of government be localised, so that the 
 concern for their efficiency may be intensified in each 
 district. From this point of view, we may contrast the 
 case of ordinary poor-relief with that of provision for the 
 care and support of lunatics. The enlightened concern of 
 private persons for the less fortunate members of society 
 may do much to reduce the number of paupers, but it can 
 do little or nothing to reduce the number of lunatics ; 
 hence, if the expense of supporting paupers is localised, an 
 advantageous encouragement and reward is given to such 
 private efforts by the diminution in the burden of local 
 taxation which it tends to bring about ; but there seems 
 to be no similar gain in localising the expense and manage- 
 ment of lunatic asylums. Also, the knowledge of the 
 circumstances of the applicants for poor-relief, indispens- 
 able to its judicious administration, is more likely to be 
 secured if it is administered by local authorities. On the 
 other hand, it is desirable that the treatment of pauperism 
 should be systematic and uniform within any country of 
 which the parts are effectually connected by the modern 
 machinery for conveyance and communication ; and if in 
 any such country the whole expense of poor -relief is thrown 
 on local taxation, it seems difficult to secure the inhabitants 
 of any one district from bearing the burden of pauperism 
 that they are not responsible for causing, without a mis- 
 chievous interference with the free movement of labour 
 from one district to another. It seems therefore at once 
 equitable that the cost of poor-relief should be divided
 
 520 ELEMENTS OF POLITICS CHAP. 
 
 between local and national funds, and expedient that the 
 management should be similarly shared. 
 
 The division of functions between central and local 
 executives is a peculiarly delicate matter in the case of the 
 management of the police. On the one hand, the persons 
 residing in a town or other district have obviously a special 
 interest in the repression and detection of crime within 
 their district ; and to entrust this function to local authori- 
 ties is useful in keeping alive in the minds of the citizens 
 at large the sense that the prevention of crime is a public 
 duty which ought not to be entirely resigned into the 
 hands of officials ; since circumstances may at any time 
 arise in which the aid of private citizens in performing this 
 function is valuable and even indispensable. On the other 
 hand, it is of great concern to the whole community that 
 no part shall be allowed to harbour law-breakers ; and, 
 assuming that the rules of law are in the main determined 
 by a central legislature, it seems important that the co- 
 ercive organisation for their enforcement should be under 
 the ultimate control of the central executive ; since, if it 
 is placed in the hands of locally appointed organs of govern- 
 ment, there is a danger that laws locally unpopular will 
 not be effectively enforced. At the same time, local legis- 
 lation will on similar grounds be most appropriately 
 enforced by local police ; and the existence side by side of 
 two police organisations separately directed is likely to be a 
 troublesome complexity. It seems, therefore, on the whole 
 best that the main part of the police force should be sup- 
 ported from national funds and in the service of the central 
 government, but that, together with any additional police 
 locally appointed and paid, it should be normally left 
 under the control of local executives, who should for this 
 purpose act as subordinates of the central executive ; it 
 being always in the power of the latter to resume the 
 control of the force paid by it, in case of necessity. 
 
 In the case of the machinery for the punishment of 
 crime, the considerations in favour of a central organisation, 
 for any area over which a common system of law is estab-
 
 xxv LOCAL AND SECTIONAL GOVERNMENT 521 
 
 lished, seem more decisive. The impulses of indignation 
 that occasionally prompt private persons to take the punish- 
 ment of crime into their own hands call, in a normal state 
 of society, for repression rather than encouragement ; while 
 the importance of uniformity in order to avoid injustice is 
 very manifest. The task of justly apportioning punish- 
 ment to crime is in any case a profoundly difficult one ; but 
 a needless and preventable kind of arbitrary inequality is 
 introduced into the application of punishments, if (e.g.} a 
 period of imprisonment, nominally the same, involves very 
 different degrees of privation and discomfort in different 
 localities. 
 
 4. So far I have chiefly had in view the executive 
 or administrative work of government, together with the 
 financial business which this entails. But perhaps the 
 most important question that belongs to the present 
 chapter and one of the most important questions in the 
 whole discussion of the structure of government relates to 
 the extent to which Legislation should be allowed to be 
 localised. We have seen before that some power of laying 
 down general rules, to be obeyed by others besides the 
 servants of government, cannot without inconvenience be 
 denied to the central executive : and in the same way the 
 local executive work that we have been considering will 
 naturally involve some exercise of legislative functions. 
 Thus we may assume that local governments will have a 
 limited l power of making general regulations for the 
 common use of streets, bridges, parks, and other public 
 property, of which the use is necessarily confined in the 
 main to the inhabitants of certain localities, and of which, 
 therefore, as we have already seen, the expense may pro- 
 perly be localised. So again the sanitary intervention of 
 government and protective measures against noxious plants 
 and insects, and against destructive floods, will usually 
 involve a certain amount of general coercive regulation. 
 But the peculiar interest that a man's neighbours have in 
 
 1 If the power were unlimited it might be abused for the oppression of 
 classes locally unpopular.
 
 522 ELEMENTS OF POLITICS CHAP. 
 
 his right behaviour is obviously not restricted to his ob- 
 servance of such rules as these. Even as regards the 
 fundamental rights of personal security, property, and con- 
 tract, it is indefinitely more important to a Yorkshireman 
 that they should be properly defined and protected in 
 Yorkshire, than that they should be properly defined and 
 protected in --Kent. Nay, further, it is to be expected that 
 differences of physical conditions and industrial develop- 
 ment if not of race and political history will render the 
 special needs of Yorkshiremen in respect of protection from 
 mutual mischief, enforced co-operation for common benefit, 
 or regulated use of natural resources, somewhat different 
 from the special needs of Kentishmen ; thus Yorkshire may 
 require factory acts, but be indifferent to the regulation of 
 hop-picking, or compulsory insurance against fruit disease, 
 which may be prominent objects of concern in Kent. 
 Hence localised legislation will tend to be more fully and 
 closely adapted to these varying requirements than central- 
 ised legislation is likely to be. Even where the real re- 
 quirements do not materially vary, it is not unlikely that 
 there may be wide differences between the views prevalent 
 in different localities as to the nature and limits of desir- 
 able legislative interference; and if this is the case, the 
 gratification of the consequently divergent demands even 
 at the cost of some amount of bad legislation may avoid 
 the grave evil of spreading a general aversion to law in 
 any district when the wishes of the inhabitants are over- 
 ruled in deference to the opinions prevailing in other 
 districts. It is true that the total amount of coercion 
 involved in the enforcement of law does not necessarily 
 tend to be reduced by extending the legislative power of 
 local governments, even if such extension results in con- 
 siderable local variations in law ; since the aggregate of 
 local minorities opposed to the different local laws may be 
 as large as the previous minority opposed to the law of the 
 state. But so far as there are any causes tending to make 
 different opinions prevail in different districts, we may 
 assume that legislation will be more closely adapted to the
 
 xxv LOCAL AND SECTIONAL GOVERNMENT 523 
 
 wishes of the inhabitants of all the districts taken together, 
 in proportion as it is localised. 1 
 
 On the other hand, we may assume that, speaking 
 generally, the average statesmanship of the aggregate of 
 local legislators will be inferior to that of the members of 
 a single central legislature ; and further, that the danger of 
 mischievous legislation in the interests of a predominant 
 class will be on the whole greater in the bodies responsible 
 to sections of the community. But the strongest reasons 
 for limiting narrowly the legislative powers of local govern- 
 ments are drawn from the bad effects of diversity in the 
 laws enforced in different parts of a coherent civilised 
 community. In certain important cases, the protection 
 from mischief which the law is designed to afford cannot 
 be effectively given except by rules enforced throughout 
 the whole country ; thus, if Yorkshire refused to protect 
 industrial inventions from imitation, any encouragement to 
 inventors given by patent-laws in Lancashire would become 
 practically worthless. But even in cases where uniformity 
 is less indispensable, serious inconveniences must be ex- 
 pected to result from allowing the definitions of important 
 legal rights to vary from district to district, within a 
 country where migration from one district to another is 
 unfettered and frequent. In the first place, such variations 
 are likely to bring the doubtful equity and expediency of 
 the varying laws prominently before the minds of ordinary 
 citizens ; so that it will become more difficult to maintain 
 in due strength the habit of obedience to law and the 
 sentiments condemnatory of illegal conduct. Further, the 
 intellectual labour necessary to acquire adequate knowledge 
 of the law for practical purposes will be seriously increased, 
 at any rate for traders and other persons whose callings 
 bring them frequently into legal relations with inhabitants 
 of different districts. And finally, since the law courts of 
 any one district will be continually called upon to recognise 
 
 1 Also, assuming that there is less aversion to migration within a country 
 than to emigration from it, a quiet reduction of dissidence through the 
 departure of the dissidents will be more probable in the case of local laws.
 
 524 ELEMENTS OF POLITICS CHAP. 
 
 the validity of legal relations determined by the laws of 
 other districts, the judicial administration of law must 
 become more laborious, through the bewildering variety of 
 legal rules which judges and legal practitioners will be 
 required to know and apply ; and the same cause will 
 have an unfavourable effect on the average quality of 
 judicial decisions. 
 
 These disadvantages make it generally expedient to 
 avoid any extensive devolution of legislative powers on 
 local governments, at any .rate in a community of which 
 the parts are not strongly divided by marked differences of 
 race or civilisation, or the habits and sentiments surviving 
 from previous political independence, and are not precluded 
 by distance or physical obstacles from active mutual com- 
 munication. It should, however, be noted that the dis- 
 advantages above mentioned are likely to be very different 
 in degree in different departments of law. Thus, we have 
 before seen 1 that local variations are especially to be 
 deprecated in the law regulating family relations, on 
 account of the special importance in this department of 
 harmony between legal rules and moral sentiments ; and 
 also in the law regulating commercial relations, on account 
 of the natural and desirable tendency of such relations to 
 extend over the lines of local division in a modern civilised 
 community. On the other hand, we may expect the dis- 
 advantages of mere variation apart from any consideration 
 of the goodness or badness of the different rules to be 
 decidedly less in the case of laws regulating the tenure of 
 agricultural land : since the purchase or occupation of such 
 land is an important act that is not likely to occur very 
 frequently in the life of an ordinary member of the com- 
 
 1 See Chap. XIV. 5 : where I have quoted from an American writer 
 (Professor Munroe Smith) an illustration of the bad effects of local varia- 
 tions in family law. It is, however, to be noted that the inconveniences 
 due to local variations in law have been much reduced in the United States 
 by the fact that most of the States have inherited the English common law, 
 and both Federal and State Courts, in interpreting and applying this law, 
 have co-operated to keep it practically the same in the different States. 
 See Professor Munroe Smith's Article (II) on " State Statute and Common 
 Law," in the Political Science Quarterly for March 1888.
 
 XXV LOCAL AND SECTIONAL GOVERNMENT 525 
 
 m unity ; and the disputes arising out of it will rarely 
 involve any perplexing conflict of laws. 
 
 One argument for allotting legislative functions to local 
 organs deserves special notice from a student of politics, 
 since it interests him if I may say so professionally ; 
 viz. that it would assist the progress of political science, 
 through the greater opportunities that it would give for 
 the trial of legislative experiments. And certainly, in 
 matters on which the opinions of experts appear to be 
 evenly divided as to the expediency of a given legislative 
 measure, valuable instruction might often be gained by 
 allowing it to be partially introduced by way of experiment 
 in a district favourably disposed to it. I think, however, 
 that this consideration would not usually lead to a com- 
 plete devolution of legislative functions upon local organs, 
 as regards the matter in question ; but rather to a careful 
 division of the legislative function between local and central 
 organs : since the central organ, from its presumably greater 
 skill and wider range of experience, is likely to be best 
 adapted to ascertain and turn to account the scientific 
 results of the experiment. 
 
 5. In determining the structure of local governments, 
 the general principles which have been laid down for the 
 organisation of the central government are applicable, but 
 with important differences, corresponding to the differences 
 in the nature and extent of the functions assigned to the 
 local organs. In the first place, assuming that legislation 
 is mainly centralised, we may omit the judiciary from our 
 present consideration ; since, though it is fundamentally 
 important that there should be an adequate supply of local 
 tribunals, it is not desirable that they should be under 
 local control. Secondly, assuming that the control of local 
 as of national finance is given to a representative body, as 
 this local parliament will only have legislative functions to 
 a very limited extent, it will have leisure to undertake a 
 larger share of the work of administration than it has 
 seemed expedient to allot to the central parliament. The 
 objections to the direct intervention of such a body in
 
 526 ELEMENTS OF POLITICS CHAP. 
 
 executive business apply less in the case of local govern- 
 ment ; as secrecy, vigour, and promptitude are less import- 
 ant in the matters of internal administration placed under 
 local control, while the aggregate of special knowledge 
 which a tolerably numerous representative body may be 
 expected to possess is likely to be peculiarly valuable in 
 such matters. On the other hand, the advantage of con- 
 centrating responsibility on an individual, instead of dis- 
 persing it among the members of a numerous council, is no 
 less important in local than in national administration : it 
 is even likely to be relatively greater, in proportion as the 
 criticism of local administration tends to be less vigilant 
 and vigorous than the criticism of national administration. 
 Another point to be noted is that the unpaid work of 
 persons of leisure has naturally a larger place in local 
 executive business, as the demands that this usually makes 
 on the time and energies of the persons managing it are 
 less heavy and incessant. 
 
 It seems generally expedient that the different functions 
 of local government exercised over the same areas should 
 be united at least so far as legislation and ultimate con- 
 trol are concerned in the hands of a single deliberative 
 assembly or sub-parliament; in order that the importance 
 of the aggregate of business thus formed may help to draw 
 to the work the best talent available, of men who have 
 sufficient leisure. The expediency of this is, however, con- 
 ditional on there being a sufficient supply of competent 
 persons available who have the amount of leisure required 
 for the proper performance of this accumulated work, and 
 are willing to give it to the public service. Where this is 
 not the case the work may be better performed if it is 
 distributed in smaller fractions : supposing that there are 
 in the locality only a few persons able or willing to give 
 much time to the work of local government, while there are 
 a good many who can and will give a little. 
 
 6. In some cases another reason for distributing 
 governmental functions among different bodies in the same 
 district is supplied by the consideration that is the primary
 
 xxv LOCAL AND SECTIONAL GOVERNMENT 527 
 
 ground for establishing local organs of government : the 
 principle that those who profit by any governmental ex- 
 penditure should at the same time bear the burden of it, 
 and exercise financial control over it. For within any 
 district the utility of some expenditure, for which govern- 
 mental intervention appears to be requisite, may accrue 
 mainly to a section of the community. So far, then, as 
 the inequality of benefit is definite and unmistakable, it is 
 prima facie reasonable that there should be a corresponding 
 inequality in the allotment both of the burden of expendi- 
 ture and of the power of control : but the extent to which 
 this can be arranged, and the manner of arranging it, will 
 probably differ in different cases. (1) If the work in 
 question tends to promote, primarily and directly, the 
 interests only of one special clearly defined class bene- 
 fiting other classes only vaguely and indirectly, in the way 
 in which most economic advantages tend to be diffused it 
 seems generally expedient to leave the control of the work 
 entirely to the persons primarily interested ; only giving 
 them power to act as a body in spite of the resistance of 
 a minority. 1 Thus, power may be given to a sufficient 
 majority of the owners and occupiers of land in a district 
 or a sufficient preponderance of opinion, taking wealth 
 as well as numbers into account to undertake necessary 
 works of drainage or irrigation, imposing on all the persons 
 interested a share of the expense proportionate to their 
 respective interests; the method of apportionment being 
 determined by some impartial authority, probably the 
 central legislature. (2) If the advantage to be derived 
 from the work by the inhabitants of the district generally 
 appears palpable and considerable, though the advantage 
 accruing to a special class predominates, a pecuniary sub- 
 vention might be granted on certain conditions from funds 
 raised by local taxation, the ordinary management of the 
 
 1 I assume that the coercive action of government is necessary to secure 
 a satisfactory result, on the general principle on which this kind of inter- 
 ference has before been justified in exceptional cases. See Chap. X. 2, 
 pp. 147, 150.
 
 528 ELEMENTS OF POLITICS CHAP. 
 
 work being still left in the hands of an association of the 
 persons specially interested : provided that there is no 
 material divergence between the common interest and the 
 interest of the special class in question. (3) Where, on 
 the other hand, the general interest is preponderant, though 
 special benefits accrue to a small minority, it would usually 
 be impracticable to allot to the latter any special share in 
 the financial control of the work. Under these circum- 
 stances, though special taxation of the persons specially 
 benefited still seems theoretically just, it will be liable 
 to become practically oppressive unless the rules under 
 which it is imposed are strictly determined by an impartial 
 authority. 
 
 The discussion of what is properly " local " government 
 has thus led us to consider a case of what, in the title of 
 this chapter, I have ventured to describe as " sectional " 
 government. I use this latter term to denote the cases in 
 which governmental functions are exercised by bodies (or 
 individuals) partially independent of the ordinary executive 
 over portions of the community defined not by local 
 habitation but by some other characteristic. It is quite 
 conceivable that subordinate governmental functions should 
 be largely distributed on this plan. A civilised community 
 is naturally divisible, otherwise than locally, into classes 
 that have to some extent common class-interests ; and it 
 seems at first sight a plausible suggestion that any such 
 class that may stand in need of any special kind of govern- 
 mental interference should be organised on the representa- 
 tive system into a partially self-governing body for the pur- 
 poses of such interference. Thus, the farmers throughout' the 
 country, or in a certain district, might elect a Chamber of 
 Agriculture, the traders might elect Chambers of Commerce, 
 etc., to which certain powers might be given for the 
 management of the details of such governmental inter- 
 ference as is needed for agriculture and trade respectively ; 
 on the ground that such bodies are likely to have more 
 full and exact knowledge of the matters to be regulated, 
 and of the probable effects of any given regulation, than
 
 XXV LOCAL AND SECTIONAL GOVERNMENT 529 
 
 any governmental organ otherwise appointed. 1 Certainly 
 there would be some advantage in such an organisation : 
 the counsels and criticisms of such bodies ought to furnish 
 important instruction to Government. But there is a 
 strong reason against any considerable delegation of govern- 
 mental functions to such bodies in a modern state, namely, 
 that the interests of the industrial classes into which a 
 modern community is naturally divisible, cannot ordinarily 
 be more than a part of the interests that Government has 
 to consider in the case of any special interference. They 
 are the interests of the producers of some commodity, 
 material or immaterial, as distinct from those of the con- 
 sumers ; since the latter are usually too numerous and dis- 
 persed, and as individuals too slightly interested, to combine 
 effectively for the purpose of sectional government. Now 
 a combination of producers usually tends to aim more or 
 less at the advantage of monopoly ; and its power of thus 
 affecting adversely the interests of consumers calls for re- 
 pression rather than encouragement from Government. 
 Only so far as the interests of any body of traders or pro- 
 fessional men can be made to coincide with those of the 
 community, can the former be safely entrusted with any 
 share of the functions of Government ; and this result can 
 usually be attained only to a very limited extent. This 
 objection does not indeed apply to associations formed 
 either for supplying the needs of the persons associated, or 
 for promoting the general good of the community in some 
 unremunerative way : but it is only in exceptional cases 
 that such associations seem to require the intervention of 
 Government in their organisation and management. I may 
 note, however, that special grounds for such intervention 
 are widely held to exist, in the case of bodies of persons 
 united by a common religious creed and the practice of 
 similar religious rites. This case will be further discussed 
 in a subsequent chapter (XXVIII.). 
 
 1 It may be observed that trade guilds, at an earlier period of European 
 history, actually exercised such powers of "sectional" government. 
 
 2M
 
 CHAPTEK XXVI 
 
 FEDERAL AND OTHER COMPOSITE STATES 
 
 1. IN the preceding chapter I noticed briefly the histori- 
 cal conditions to which great weight has to be allowed in 
 dividing the territory of a state for purposes of local govern- 
 ment ; but I did not take these conditions into account in 
 discussing the distribution of functions between central and 
 local governments. Actually, however, the same historical 
 considerations that are decisive in determining areas will 
 often powerfully influence the division of functions. When 
 states or parts of states which have either been formally 
 independent, or have enjoyed a large amount of practical 
 autonomy, are united either voluntarily or through con- 
 quest into one political community, the portions thus 
 combined are likely to desire to retain important differences 
 in laws and customs. Such differences may be intensified 
 by differences in race, in religion, or in the level of civilisa- 
 tion attained ; but independently of these the mere memory 
 of the past may leave behind in such " part-states " a 
 sentiment of nationality strongly opposed to complete 
 absorption in the larger political whole of which they have 
 become parts. In this way an extension of the powers 
 of local governments may become expedient, considerably 
 beyond what would be either desired or desirable, if a 
 single tolerably homogeneous people had merely been sub- 
 jected to different physical conditions, and spread itself 
 over its common territory with different degrees of density. 
 But further, even in the case of such a homogeneous 
 people physical conditions may cause and justify a great
 
 CH. xxvi FEDERAL AND OTHER COMPOSITE STATES 531 
 
 enlargement of the powers of local authorities. The mere 
 distance of one part of the territory from another may have 
 this effect, especially when a nation is expanding in the 
 way of colonisation ; this is exemplified by the whole 
 history of the English colonies, through all the varieties 
 and changes in their forms of government. 1 
 
 A state including parts that have, from one or other of 
 the above-mentioned causes, a high degree of political 
 separateness, may be called practically composite ; even if 
 the governments of its parts are regularly controlled by 
 one supreme legislature and one supreme executive, so that 
 its constitution still remains formally unitary. If such 
 a state is under popular government and its supreme 
 legislature is elected only by or consists only of the 
 citizens who reside in a portion of its territory, the other 
 parts of the state are commonly said to be " dependencies " 
 of the portion to which the legislature is formally respon- 
 sible : and a similar difference may practically exist under 
 other forms of government, although the formal constitu- 
 tional rights of the great majority of the inhabitants may 
 be the same throughout the territory of the state. E.g. 
 under absolute monarchy, though no part of the state can 
 be formally a dependency of any other part, it may be so 
 practically ; the monarch may choose his leading subordin- 
 ates exclusively or mainly from a portion of his dominions, 
 and be practically under the exclusive influence of its public 
 opinion. This position of dependence, whether formal or 
 only practical, tends to cause discontent : and it is not 
 likely to be permanently accepted by communities habitu- 
 ated to popular government, and feeling themselves on a 
 level in civilisation with the dominant community ; unless 
 their inferiority in strength to the latter is such as to render 
 a conflict hopeless, or unless their exclusion from political 
 rights is compensated by economic or other advantages. 2 
 
 1 The maintenance of the federal system in the United States may be 
 partly attributed to a sense of the difficulty of governing its vast territory 
 by the methods of a unitary state. 
 
 2 Such compensations will, of course, be generally likely to excite the 
 jealousy of the inhabitants of the dominant portion of the state.
 
 532 ELEMENTS OF POLITICS CHAP. 
 
 Hence, unless one portion of such a composite state is over- 
 whelmingly superior in size and strength, there will be a 
 tendency to demand an approximate equalisation of political 
 status among the parts. If, under these conditions, there is 
 a general desire to maintain the political separateness of the 
 parts as well as their union in the larger whole, an obvious 
 method of satisfying this desire is to introduce a stable 
 constitutional division of functions between the government 
 of the whole and the governments of the parts, securing to 
 the latter a substantial amount of legislative independence. 
 We thus arrive at the general idea of a " Federal " state, 
 as a whole made up of parts politically co-ordinate and 
 constitutionally separate: though, as we shall presently 
 see, there remain considerable divergences of view as to the 
 exact definition of " Federality." 
 
 S 2. A federal state has to be distinguished on the one 
 side from a unitary state with well-developed local govern- 
 ments, and on the other side from a league or confederation 
 of independent states : but in neither case is the distinction 
 simple and sharp, since the balanced combination of " unity 
 of the whole aggregate " with " separateness of parts," which 
 constitutes Federality, may be realised in very various modes 
 and degrees. It will be well therefore to examine either 
 distinction carefully before we consider the circumstances 
 under which any form of federal constitution is expedient. 
 
 The clearest formal 1 difference between a federal state 
 and a unitary state whose parts are approximately equal in 
 political privileges is, as I have just said, that in the former 
 
 1 We doubtless find in history instances of federal unions in which there 
 was no clear and precise constitutional division of powers, although practi- 
 cally the parts retained their independence, while effectively united in a 
 larger whole. And no doubt a modern state might be practically federal, 
 without a precise and stable division of powers, if the substantial autonomy 
 of the parts were maintained by custom and public opinion. But if the 
 central legislature were recognised as having the power to abolish this 
 autonomy, I should regard the state as formally unitary ; and if the point 
 were left doubtful, I should regard the form of government as seriously 
 lacking in definiteness. And such lack of definiteness is not merely a 
 theoretical defect : it involves an obvious risk of friction and conflict 
 between the government of the parts and the government of the whole.
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 533 
 
 the power of the ordinary legislature of the whole is con- 
 stitutionally limited in favour of the autonomy of locally T 
 distinct parts. But we may further lay down (1) that 
 unless this autonomy is considerable in extent, it would 
 be paradoxical to call the state federal ; (2) that when 
 the federality is well marked, the compositeness of the 
 state will find expression somehow in the structure of the 
 common government ; (3) that if the federal character of the 
 polity is to be stable, the constitutional process of changing 
 the constitutional division of powers between central and 
 local governments must be determined in harmony with the 
 principle of federalism. 
 
 Let us consider briefly each of these three conditions : 
 I. In laying down that the autonomy of the parts of a 
 federal state must be considerable in extent, I mean that we 
 should hardly call a state federal merely because the inde- 
 pendence of local governments in certain minor matters was 
 guaranteed by the constitution. At the same time, we 
 cannot say that Federality implies any definite division of 
 functions between the governments of the parts and the 
 common government of the whole. The principle of federal 
 union is sometimes stated to be that the federated parts are 
 to be independent as regards " internal matters," while they 
 have a common government for " external matters." And 
 no doubt this statement indicates roughly the line of division 
 that is both usual and expedient. But, firstly, it leaves 
 doubtful how matters external to the parts but not to the 
 whole matters that concern the mutual relations of the 
 parts are to be determined ; and this intermediate region 
 is very important in modern states : for instance, hardly 
 any point is likely to be more vital for the cohesion and 
 stability of a federal state than to secure free trade among 
 the federated part -states. 2 And, secondly, matters that 
 
 1 Theoretically we should perhaps include the case in which parts divided 
 by race or religion, and not by locality or habitation, have a substantial auto- 
 nomy ; but the term ' ' federal " is not usually applied to such combinations. 
 
 2 The constitutional prohibition of restrictions on commerce among the 
 federated part-states has been of fundamental importance in the history of 
 the North American Union.
 
 534 ELEMENTS OF POLITICS CHAP. 
 
 must be admitted to be strictly internal to each part may 
 be of serious common interest to the whole, on account of the 
 mischief or waste of labour caused by want of uniformity, 
 as was pointed out in the preceding chapter. This is the 
 case (e.g.} with such matters as regulation of currency, 
 patents and copyrights, bankruptcy, and generally com- 
 mercial law and, in short, all such matters as it would be 
 most palpably unwise to assign to local governments in a 
 unitary state. Such matters as these should undoubtedly 
 be included in the province of the common government, 
 at any rate if the federal territory be approximately 
 continuous no less than the management of foreign 
 relations, and the organisation and the control of the 
 military forces necessary for protection against foreign 
 aggression. Again, the common government ought to have 
 the power of enforcing the fulfilment of international 
 obligations, and this must occasionally involve interference 
 in the internal affairs of the part-states, to suppress or 
 punish conduct mischievous to foreigners. It may even be 
 expedient for the wellbeing of the whole that the internal 
 political constitutions of the part-states should be to some 
 extent determined in the federal constitution ; owing to the 
 mutual disturbance which polities based on fundamentally 
 diverse principles are likely to cause if brought into close 
 contact through federation. 1 
 
 It may be further noted that the federal character of the 
 whole state becomes more marked if the powers of the 
 common government are defined, while those of the partial 
 governments are left indefinite in the constitutional division ; 
 so that the residuary powers belong to the part-states. 
 
 II. It is a natural, if not a necessary, characteristic of a 
 federal polity that the separate political existence of part- 
 states as members of the whole state should be somehow 
 represented in the structure of the common government. 
 This may be done in various ways and degrees : (1) as the 
 part-states, if independent, would be formally equal in 
 
 1 On this ground the North American Union prescribes a republican 
 constitution as an absolute condition of membership.
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 535 
 
 international rights, their partially retained independence 
 may be represented by giving to all equal shares in the 
 election of some important part of the common government, 
 so that normally any decision of the body or individual so 
 elected will represent the decision of a majority of the 
 part-states. 1 If, however, the part-states are very unequal 
 in size, this arrangement may be rejected as conflicting too 
 strongly with the constitutional right of a majority of 
 citizens to determine in the long run the policy of the 
 common government. (2) In this case another method 
 may be adopted of representing the separateness of the 
 part-states : a representative body may be constituted as 
 part of the common government, in which representatives 
 of each part-state vote not individually but collectively, 
 according to the decision of a majority of their number; 
 the aggregate voting power of each set of representatives 
 being proportioned to the size of the part-state that they 
 represent. 2 (3) The federal character of the polity may be 
 still further accentuated by making it the constitutional 
 duty of the representatives to conform to instructions 
 received from the governments of the respective part-states. 
 This last plan, however, is objectionable as tending to 
 hamper inconveniently the deliberative independence of the 
 governmental organ composed of these delegates. 
 
 III. It remains to consider how far, and in what way, 
 stability is to be given to this balanced division of govern- 
 mental powers between whole and parts. In a " unitary " 
 state the division may depend entirely on the will of the 
 central legislature ; the powers (e.g.} of our county councils 
 were given by Act of Parliament, and another Act of 
 Parliament might take them away to-morrow. But I have 
 regarded it as characteristic of a federal government that 
 the ordinary central legislature has no such unlimited 
 power of modifying the division of power between itself 
 
 1 This plan is adopted in the construction of the Senate in the United 
 States and in Switzerland. 
 
 2 This is the method adopted in the construction of the Federal Council 
 in the German Empire.
 
 536 ELEMENTS OF POLITICS CHAP. 
 
 and the legislatures of the separate federated states : the 
 division is fixed by the constitution, which the ordinary 
 central legislature, no less than the local legislatures, is 
 bound to obey. It is conceivable that the rules of such a 
 constitution should be immutable, i.e. that there should be 
 no legal method of changing them. But such immutability 
 is indefensible from a utilitarian point of view ; and would, 
 I think, be generally condemned by political thinkers of all 
 schools at the present day. We realise too fully the 
 inevitable changes of social needs and conditions, and the 
 limitations of human foresight, to approve of establishing 
 constitutions that cannot be altered without illegality. 
 Hence a federal constitution must include a governmental 
 organ permanent or temporary having the function of 
 modifying the constitution when a change is required. 
 
 It is not, indeed, absolutely necessary that the modifying 
 organ should be different from the ordinary central legisla- 
 ture, provided the process of changing a constitutional rule 
 be made more difficult than that of ordinary legislation ; as 
 (e.g.) by requiring a majority of two-thirds or three-fourths 
 in every branch of the legislature. If in one branch of 
 the legislature the part-states are equally represented, this 
 arrangement will secure that no change is made unless 
 supported by the representatives not only of a decided 
 majority of citizens but also of a decided majority of 
 part-states. But it would seem better to attain the same 
 result directly, by making the consent of a majority or, if 
 greater stability is desired, two-thirds or three-fourths of 
 the legislatures 1 of the part-states necessary to the validity 
 of a change in the federal constitution. It might even be 
 plausibly maintained that the principle of Federalism, 
 strictly taken, requires that the consent of any part-state 
 should be given to any change in the constitutional division 
 of powers between the whole and the parts ; on the view 
 that the powers allotted to the part-states belong to them 
 independently, in their own right, and being not conferred 
 
 1 The legislatures appointed for this purpose in the respective part-states 
 need not be the ordinary legislatures.
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 537 
 
 by any authority external to the state, cannot legitimately 
 be withdrawn by any such authority. But, while admitting 
 that a federal constitution ought to be stable, I think this 
 degree of rigidity would be in most cases inconvenient ; 
 since it would render any constitutional rule however 
 inexpedient it might turn out to be unalterable without 
 revolution, if it was the decided interest of a single part-state 
 to maintain it. This form of federality seems to me rather 
 suitable not to a federal state but to a federal union of 
 states dissoluble at will. 
 
 3. We are thus led to the second distinction required 
 to complete our definition of a federal state ; we have to 
 distinguish it from a federal union, which is not held to be 
 a state, but a Confederation or league of states. Such a 
 confederation may vary indefinitely in closeness : e.g. the 
 term is sometimes applied to a mere Alliance for a limited 
 time, which does not result in the formation of any important 
 common organ of government. By a " confederation," how- 
 ever, I shall here mean a union of states designed to be 
 permanent ; and if states unite for permanent common 
 action in important matters, they are likely to establish 
 some common organ having power to make decisions of 
 importance in respect of this common action. The most 
 obvious motive for such a union is to gain security and 
 strength in foreign relations ; but this end is hardly likely 
 to be permanently attained unless there is some common 
 council, authorised to represent the aggregate of the con- 
 federated states in any dealings with states outside the 
 union, as well as common management of military forces 
 in case of war. If such a permanent organ of common 
 government is established, the union clearly goes beyond a 
 mere Alliance. At the same time, to secure the strength 
 that union gives, it would seem almost indispensable to 
 prevent wars within the confederation, and therefore to 
 give to the same or some other organ judicial functions 
 for the settlement of disputes among the confederated 
 states. Combination to this extent will further render 
 it convenient to have a financial organ to determine the
 
 538 ELEMENTS OF POLITICS CHAP. 
 
 contributions of the different states for common pur- 
 poses. 
 
 Taking some such scheme as this for a starting-point, it is 
 obvious that the powers of the common government might be 
 gradually extended, and the relative importance of the govern- 
 ments of the part-states gradually reduced in the same pro- 
 portion. The question then is, whether we can mark any 
 definite point of transition at which unity predominates over 
 plurality, and the " confederation of states " passes into the 
 " federal state." This like other questions of definition 
 comes ultimately to be a question of words ; but it may 
 be instructive to consider briefly the importance of different 
 characteristics, by reference to which the line may be drawn. 
 (1) I conceive that, so long as the united states or part- 
 states retain the right of withdrawing from the union at 
 will, then whatever be the extent of the revocable powers 
 that they agree to allow to the central government we 
 must continue to regard them as independent states con- 
 federated. (2) But irrevocability alone will not suffice for 
 the required distinction ; since we can conceive states 
 irrevocably united in a permanent league, while yet re- 
 taining a substantial amount of independence in their 
 relations with foreigners ; and in this case we could hardly 
 regard them as forming a single state. If, however, the 
 federated communities are completely controlled by a single 
 common government in all their foreign relations, and in 
 all important matters solely represented by this government, 
 it seems clear that they become a single state from an 
 international point of view, however great may be the 
 internal independence of the parts. (3) Still, for the 
 adequate and stable realisation of the unity of a state a 
 further condition seems indispensable : viz. that the central 
 government should enter normally into important direct 
 relations with the citizens, instead of merely acting on 
 them through the governing organs of the part-states : i.e. 
 that there should be a federal legislature whose laws in 
 certain matters are binding on the citizens as individuals, a 
 federal judiciary to decide, in the last resort, whether these
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 539 
 
 laws have been obeyed or not, and a federal executive that, 
 in enforcing the laws and collecting taxes, deals normally 
 with individuals, as such. I do not say that this condition 
 is to be taken as essential to the conception of a federal 
 state : but certainly so long as the central government only 
 acts on individuals through legislatures, executives, and 
 judicatures of the part-states, the aggregate governed 
 whatever we may call it retains the form of union appro- 
 priate to a confederation of states. The distinction between 
 the two cases seems to me very profound from the point 
 of view of an individual member of the community ; since 
 in the latter case the individual citizen will have a habit of 
 undivided allegiance to the government of his part-state 
 with which, therefore, he will naturally side if any dispute 
 should arise between central and local organs ; whereas, in 
 the former case, it will be his recognised and habitual civic 
 duty to obey either government within its own sphere. 
 This habit of divided allegiance I take to be an essential 
 characteristic of a well-organised federal state, as contrasted 
 on the one hand with a unitary state, and on the other 
 hand with a confederation of states. 
 
 4. A consideration of this divided allegiance raises a 
 question of fundamental importance in the construction of 
 a Federal government. Suppose that governmental powers 
 are divided by a federal constitution between central and 
 local organs : how is the division to be practically main- 
 tained ? how are the different organs to be practically 
 kept within their constitutional limits ? If there is a 
 conflict between the common government and the govern- 
 ment of the part, is the private citizen to determine for 
 himself whom to obey ? or, if not, how is he aided in 
 determining it ? A case somewhat parallel may occur in 
 a unitary state, even when the legislature is formally 
 unlimited, if the executive issues commands in excess of the 
 powers conferred on it by law. Here, however, it would 
 be clear according to the principle laid down in Chap. 
 XXIV. that the private citizen might refer the point to 
 the judiciary, who would pronounce upon the legality of the
 
 540 ELEMENTS OF POLITICS CHAP. 
 
 command. The same method l is obviously applicable in the 
 present case : the courts of law can treat as invalid any 
 commands of either central or local legislature that conflict 
 with clauses of the constitution. And where the principle of 
 federality is thoroughly carried out, there is a special advan- 
 tage in dealing with the question by a strictly judicial method ; 
 since the balanced division of powers which belongs to the 
 essence of federality is especially likely to lead to disputes 
 as to the exact limits of the divided powers. But it is 
 evident that the position of the judiciary relatively to either 
 central or local legislature will be materially different from 
 that which we have so far contemplated, if we assume the 
 former to have the duty of sitting in judgment on the 
 legality of the acts of the latter : and the more stability 
 is given to the constitution by making the process of 
 changing it difficult, the greater becomes the importance 
 of this judicial function of interpreting its clauses. To 
 ensure the efficient performance of this function, the 
 supreme court of justice must be made adequately inde- 
 pendent of both central and local legislatures, no less than 
 of the executive governments : and it is a delicate problem 
 to find conditions of appointment and tenure that will 
 secure this independence, without at the same time giving 
 the supreme court too predominant a power. 
 
 Perhaps we may suggest (1) that the members of this 
 court should be appointed for life, or for a term of years 
 that cannot be prolonged : (2) that no additional members 
 should be added without the consent of the court, and no 
 member compulsorily removed from office except by a 
 tribunal of which the greater part consists of judges of this 
 court, provided that either of these changes may be made, 
 in the last resort, by the process provided for effecting a 
 change in the constitution. 
 
 Apart from the question of the decisive interpretation 
 of constitutional rules, the chief special problem presented 
 by the construction of a Federal Government is to provide 
 
 1 Other methods of dealing with this problem will be noticed in the next 
 chapter, 4.
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 541 
 
 adequate security that the different interests of the part- 
 states are duly regarded in legislation. So far as this 
 security is provided by the constitution, federal sentiment 
 will tend to make the constitution stable by requiring the 
 assent of a large majority of part-states as represented 
 either by ordinary or extraordinary legislatures to any 
 change in the constitution. 1 And where the part-states 
 are either numerous or not very unequal in size, it does not 
 seem that any further security beyond that given by 
 ordinary representative government is necessary to protect 
 the sectional interests of the part-states, so far as they are 
 affected by the action of the federal legislature within the 
 limits of the constitution. But where the part-states are 
 so few or so unequal in size that a single part, if repre- 
 sented in proportion to its numbers, would tend to pre- 
 ponderate in the central legislature, the smaller part-states 
 incur a certain danger of becoming practically dependencies 
 of the larger so far as the action of the central govern- 
 ment is concerned at least if the preponderant part-state 
 has important separate interests, or strong particularist 
 sentiment. Such a danger may, as we have seen, be 
 averted by giving equal representation to the part-states 
 in the Senate. It seems, however, improbable that this 
 arrangement would be accepted by a large part-state if the 
 inequality of size were very great e.g. if one part-state 
 was larger than all the rest put together ; while the other 
 plan before mentioned of expressing Federality in the 
 constitution of the common government by making the 
 representatives of each part-state vote collectively would 
 materially increase the danger of undue preponderance of a 
 large part-state. If, therefore, the parts of a Federal State 
 are few, it is better that they should be not very unequal 
 in size ; and the fewer they are, the smaller is the inequality 
 that would be dangerous. 
 
 1 Thus, as we saw (p. 26), in the North American Union, the assent of 
 three-fourths of such legislatures as well as two-thirds of either house of 
 the federal congress is required. This requirement has rendered the con- 
 stitution so stable that only five amendments have been passed in a century, 
 three of which represent the result of a civil war of four years' duration.
 
 542 ELEMENTS OF POLITICS CHAP. 
 
 I have assumed that the part-states will be approxi- 
 mately equal in political privileges. Of course Federal] ty 
 is not destroyed by the allotment of some minor special 
 privileges to particular part-states ; such special privileges, 
 however, are hardly likely to be secure unless the constitu- 
 tion provides that they cannot be withdrawn without the 
 consent of the privileged states ; l and this provision may 
 render them inconveniently stable. 
 
 8 5. I pass to consider the reasons for forming a federal 
 union either in a closer or in a laxer form. Firstly, it 
 enables small independent communities not strongly divided 
 by interests or sentiments, to escape the chief military 
 and economic disadvantages attaching to small states, at the 
 least possible sacrifice of independence. A small state with 
 large and powerful neighbours incurs some danger of high- 
 handed aggression though the mutual jealousy of the 
 neighbours may often render this remote and vague and 
 the milder disadvantage of being usually obliged to yield 
 in disputes where the question of right is ambiguous. 
 Further, so long as modern states endeavour, by elaborately 
 arranged tariffs, to exclude or hamper the competition of 
 foreign producers in their markets, it will generally be some 
 disadvantage to the members of a small state that they can 
 only rely on a comparatively small area of unrestricted 
 trade. Of these disadvantages, military weakness has been 
 historically most important ; if we examine the leading 
 instances of federations in modern history Switzerland, 
 the United Netherlands, and the United States of North 
 America the fear of foreign subjugation or interference 
 appears as the main cause of the union of the federating 
 communities. In the case, however, of North America, 
 though the first federal union was due to the war of inde- 
 pendence, commercial considerations had a large share in 
 bringing about the second and more stable union of 1789 ; 
 and, as the federal state has grown and expanded over the 
 North American continent, the advantages of the federal 
 
 1 Several German part-states especially Prussia, Bavaria, and Wurtem- 
 berg have such special privileges in the present German Empire.
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 543 
 
 union as a means of preventing commercial exclusions as 
 well as internal wars have become more prominent. 
 
 Further, North America may also illustrate the advantages 
 of federalism from a different point of view ; i.e. as a mode 
 of political organisation by which a nation may realise the 
 maximum of liberty compatible with order : since, as we 
 have already seen, the amount of governmental coercion is 
 likely on the average to be less, in proportion as the powers 
 of local governments are extended at the expense of the 
 central government. It seems, indeed, very doubtful how far 
 a body of persons, as independent in sentiments and habits 
 as the English colonists of North America, would have held 
 together upon any other terms than those of a federal union, 
 when sparsely distributed over so large a territory as that 
 of the United States. For the federal form of polity also 
 diminishes in proportion as the functions of the central 
 legislature are restricted the practical difficulties 1 which 
 extent of territory tends to throw in the way of good 
 government ; especially the difficulty of enforcing obedience 
 if the inhabitants of distant districts are recalcitrant, and 
 the difficulty of securing that the central government is 
 sufficiently informed as to the needs of such districts. These 
 difficulties combine to place natural limits to the size of an 
 orderly and well-governed state, if remaining practically 
 unitary, limits indeed of a vague and elastic kind, and 
 greatly extended in recent times by railways and telegraphs, 
 but which still cannot be ignored in considering the 
 government of a territory as large as that of the largest 
 actual states. 
 
 The chief disadvantages of Federalism have been inci- 
 dentally noticed in the preceding chapter, when we were 
 discussing the proper limits of the powers of local govern- 
 ment in a unitary state. I have there sufficiently dwelt on 
 the drawbacks of localised legislation in a country whose 
 
 1 It may be remarked that these difficulties tend to be increased if long 
 intervals of seas are interposed between different parts of the territory, pre- 
 venting the continuous expansion of the community, and tending to render 
 the circumstances of its divided parts materially different.
 
 544 ELEMENTS OF POLITICS CHAP, 
 
 parts are in active mutual communication. I also pointed 
 out that the strength and stability which a state derives 
 from internal cohesion tend to be somewhat reduced by 
 the independent activity of local governments, if the latter 
 can be effectively used as centres of local resistance to the 
 national will ; it is obvious that in a federal state the danger 
 from this latter source is greater, owing to the habit of 
 divided allegiance that belongs to federality ; while in a 
 confederation of states the cohesion is and is designed to 
 be weaker still, because the loyalty of the ordinary citizen 
 is concentrated on his own state. 1 On the other hand, if 
 disorder and disruption are prevented, the federal form of 
 polity, requiring as it does a rigid and stable constitution to 
 secure the partial independence of the part-states, is exposed 
 to the general objections which may be urged against such 
 a constitution as compared with a more flexible one. 2 
 
 In conclusion, it may be observed that federalism arising 
 from historical causes is likely to be in many cases a 
 transitional stage through which a composite society passes 
 on its way to a completer union ; since, as time goes on, 
 and mutual intercourse grows, the narrower patriotic senti- 
 ments that were originally a bar to full political union tend 
 to diminish, while the inconvenience of a diversity of laws 
 is more keenly felt, especially in a continuous territory. 
 Partly for the same reason, a confederation of states, if it 
 holds together, has a tendency to pass into a federal state. 
 On the other hand, the development of democratic thought 
 and sentiment, so far as it favours liberty and self-govern- 
 ment, tends in favour of federality. 
 
 6. Several of the distinctions drawn in defining Feder- 
 ality apply mutatis mutandis to a composite state, of which 
 one part is dominant and the rest dependencies. Thus, a 
 dependency may be simply a part-state that has no consti- 
 tutional control over the government of the whole, while 
 
 1 Hence hereditary monarchy so long as it is sustained by an effective 
 sentiment of personal loyalty has a peculiar utility in the way of strengthen- 
 ing the looser form of federal union ; if the uniting states will accept the 
 same monarch. 
 
 2 These objections will be considered in the next chapter.
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 545 
 
 practically enjoying the same independence as a federated 
 part-state in the management of its internal affairs. Or it 
 may have merely the more restricted self-government of a 
 district in u unitary state. Or, on the other hand, the 
 government of the dominant part may merely exercise the 
 power of the common organs of government in a Confedera- 
 tion ; or it may have even less formal power, since, just as 
 Confederation shades off into mere Alliance, so the position 
 of a Dependency shades off into that of a Protected state. 
 For though, in speaking of the external relations of states, 
 I have usually for simplicity assumed the states to be 
 completely independent ; still in fact we have to recognise 
 various relations of protection intermediate between com- 
 plete dependence and complete independence. 1 
 
 If we ask the best mode of governing dependent part- 
 states, the answer must vary with the varying conditions 
 under which the relation is suitable. Where the depend- 
 ence is compulsory or semi-compulsory, due to what we 
 may assume to be legitimate conquest, there is an obvious 
 reason for not allowing the unwilling members any influ- 
 ence on the government of the whole ; which is also a 
 sufficient reason for keeping the organised force of the 
 dependency entirely in the hands of an executive organ 
 appointed and controlled by the dominant government, and 
 for making the assent either of this organ or of the domi- 
 nant government practically as well as formally necessary 
 to any special legislation required for the dependency. It is 
 a more difficult question how far such legislation should be 
 ordinarily allowed to be framed by a representative assembly, 
 freely elected by the citizens of the dependent community 
 supposing them to be adequately homogeneous and civilised, 
 and otherwise fitted for representative institutions. On the 
 one hand, such an assembly is likely to become the mouth- 
 piece of disaffection, and to render combination easier for 
 the purpose of hampering and resisting the dominant 
 
 1 If a favourable position is secured to a dependency by a treaty regarded 
 as having the stability of a constitutional rule, the relation assumes an inter- 
 mediate character, partly resembling Federality. 
 
 2N
 
 54 6 ELEMENTS OF POLITICS CHAP. 
 
 government : on the other hand, so far as it works effect- 
 ively within the sphere assigned to it, its operation is 
 likely to diminish discontent and improve legislation ; since 
 it will be generally difficult to devise a satisfactory substi- 
 tute for such a body, as a means of ascertaining the real 
 needs of the population of the dependency. The decision 
 in any particular case must depend largely on the extent 
 and intensity of disaffection in the dependency ; since, so 
 long as this is extensive and violent, the risk of facilitating 
 dangerous organised agitation, through the election and 
 operations of a representative legislature, would generally 
 outweigh any probable gain in the way of pacification 
 or useful legislative work. Similar considerations must 
 also largely determine the answer to another important 
 question, viz. how far the subordinate posts of the execu- 
 tive and the judiciary in the dependent country should 
 be filled from the inhabitants of the dominant country. 
 Generally speaking, it is an inevitable disadvantage to a 
 dependency of this class that the work of government has 
 to be largely performed by foreigners ; who are usually 
 more costly than natives, and other things equal more 
 likely to show selfishness and rapacity ; and who, even 
 when well intentioned, are liable to understand imper- 
 fectly the laws and institutions of the country they are 
 governing. 
 
 As to the form of government for dependencies of this 
 kind, it may be observed firstly that, owing to the special 
 need of promptitude, decision, and often secrecy, a monarchical 
 organisation seems generally suitable to the executive of 
 the dependency ; secondly, that if the dependency be distant 
 from the dominant country, it is important that it should 
 be in some way represented in a special central organ of 
 government in the dominant state, in order that the 
 dominant government may make as few mistakes as possible 
 from lack of knowledge. 
 
 7. Let us now consider the case of a dependency that 
 is such voluntarily and contentedly. This relation may 
 result either (a) from the voluntary union of states pre-
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 547 
 
 viously independent, or from union originally compulsory, 
 out of which the element of constraint has vanished through 
 lapse of time ; or (&) from the expansion of a community 
 into new territory. In the former case, the relation of 
 dependence may be an acceptable arrangement when the 
 gain in the way of protection, trade, etc., is felt by the 
 dependency to be worth the price paid for it whether in 
 taxation or in loss of independence ; while the dependency 
 is too much attached to its peculiar institutions to acquiesce 
 in absorption by the dominant country, and at the same 
 time the inequality of size is so great as to render the 
 federal relation somewhat unsuitable. 
 
 A more important case for modern states is that of de- 
 pendencies resulting from the expansion of a unitary state 
 into new territory. This process would not necessarily tend 
 to this result, if the new territory colonised were continuous 
 with the old, and were also empty, and not too large. Some 
 special legislation would indeed be required to determine 
 the conditions of appropriation of land and natural re- 
 sources ; but so soon as the new districts became sufficiently 
 peopled under these conditions, they might have local 
 governments similar to the rest, and similar representation 
 in the central Parliament. But, as we have seen, after the 
 whole territory had thus been enlarged beyond a certain 
 size varying with the development of the arts of con- 
 veyance and communication good government according 
 to the methods of a unitary state would tend to become 
 more difficult : and the difficulty would arise sooner if the 
 expansion took place across a broad interval of sea, as the 
 physical separation thus caused is likely to be attended by 
 a marked difference in the conditions of the social life of 
 the colonists, and consequently in their needs of govern- 
 mental interference. For these colonial needs a central 
 government constructed on the representative system can 
 hardly be expected to legislate successfully; the mass of 
 members of Parliament would tend to be too ignorant, and 
 the representatives of the colonies too few in number and 
 liable through distance to lose touch of their constituents,
 
 548 ELEMENTS OF POLITICS CHAP. 
 
 and to be absorbed in the political movements of the mother- 
 country. This being so, the local government of the colony 
 has a reasonable claim for an independence far exceeding 
 that of a local government in the old country : and if this 
 is granted, it appears unreasonable that representatives of 
 the colony that enjoys this extent of autonomy should take 
 part in managing the domestic affairs of the mother-country. 
 Under such circumstances, the principle of Federation is 
 prima facie applicable ; but, as we have seen, the great 
 inequality in size of the parts that would be federated 
 constitutes a special objection to its application. If, for 
 this or other reasons, a Federal union is out of the question, 
 the best temporary substitute seems to be to constitute the 
 colony self-governing within a sphere somewhat similar to 
 that of a part-state in a Federation, but without any formal 
 control over the operations of the central government of the 
 state of which it is a part. 
 
 The exact extent to which this colonial self-government 
 should go must vary considerably with the degree of de- 
 velopment of the colony, its situation and external relations, 
 and other circumstances. It should also partly depend on 
 the conception formed of the desirable ultimate destiny of 
 the colony, i.e. whether this is to be a permanent political 
 connexion with the mother-country, probably in a federal 
 form, or complete independence, with perhaps some special 
 tie of alliance. 1 Thus, if the connexion is designed to be 
 permanent, the colony should not have the power to tax or 
 otherwise restrict its external trade without the consent of 
 
 1 As complete political separation between a colony and its mother-country 
 is most likely to be due to a real or supposed divergence of political interests 
 especially in foreign affairs, the same cause will probably render any 
 alliance between the two for military purposes transient and precarious. 
 Still, it may be hoped that in future any political divorce that may take place 
 between a civilised state and its colony may be effected without a violent 
 rupture ; and may accordingly leave behind, in the separated nations, such 
 sentiments of goodwill and habits of friendly intercourse as may tend to 
 maintain a durable peace between them. Perhaps this result might be pro- 
 moted by a mutual grant of the full rights of citizenship, without formal 
 nationalisation, to emigrants from either country into the other, an arrange- 
 ment quite compatible with complete political independence.
 
 xxvi FEDERAL AND OTHER COMPOSITE STATES 549 
 
 the mother-country ; since the industrial separation which 
 tends to result from a protective tariff will render political 
 union more difficult to maintain. 
 
 In any case, the position of dependence is not likely 
 to be found permanently satisfactory, at least for such 
 colonies as I have before distinguished as " colonies of 
 settlement," in which the population is mainly derived from 
 the dominant state. In such colonies, when they have 
 reached a certain pitch of population and wealth, the 
 absence of any control over the central government even 
 though compensated by a corresponding reduction in the 
 burden of taxation is likely to be felt as a grievance 
 whenever the colony and the mother-country have conflicting 
 views on matters which affect the interests of the former but 
 are entirely under the management of the latter. Friction 
 and discontent from this cause will be specially liable to 
 occur in the department of foreign affairs ; since the central 
 government, being responsible to foreigners for all acts and 
 omissions of the colonists, will be imperatively bound to 
 interfere to prevent violations of ipternational right, however 
 much such interference may run counter to the wishes of 
 the colonists generally. Under these circumstances, special 
 care is required in organising the department of the central 
 government that has to manage those colonial affairs, in 
 which the interests of the mother-country are too much 
 involved to leave them entirely to the colony. The 
 head of the department should be advised by a council 
 carefully selected from persons who have empirical know- 
 ledge of the different colonies: and the self-governing 
 colonies should be encouraged to use any convenient 
 channel for making their needs and wishes known to 
 the central government. 
 
 One specially important peculiarity usually found in the 
 circumstances of colonists is, that the territory colonised is 
 partially occupied by less civilised societies, whose relations 
 to the colonists require careful regulation. To impose on 
 the colonists unaided the task of dealing with these 
 " aborigines " would in some cases involve a serious risk of
 
 550 ELEMENTS OF POLITICS CHAP, xxvl 
 
 bloodshed : the forces of the mother-country would have to 
 intervene at a certain point ; and, so long as there is any 
 danger of this, it seems clearly expedient that the mother- 
 country should retain sufficient control over the colony to 
 enable it to interfere effectually before this point is reached. 
 Even when the colonists have overwhelming superiority in 
 physical force which soon comes to be the case, if it is not 
 the case at first, in colonies of settlement the greater im- 
 partiality that may be reasonably attributed to the home 
 government seems to render it generally desirable that the 
 management of the aborigines should not be regarded as an 
 " internal affair " of the colony, so long as there is any serious 
 danger of a conflict of races or persecution of the inferior race. 
 But, as was before said, 1 the question of the relations to 
 be established between colonists and aborigines is most 
 important in colonies where the manual labour can never 
 be in the main supplied by the superior race : since here 
 the composite character of the population must be regarded 
 as permanent unless the races blend. To a society so con- 
 stituted the governmental structure sketched in the pre- 
 ceding chapters is prima facie unsuited : but the extent and 
 nature of the modifications that should be introduced into 
 it must vary very much with the degree of civilisation 
 actually reached by the inferior race, and its apparent 
 capacity for further improvement. It will be difficult to 
 prevent a simple oligarchy of the superior race from being 
 tyrannical : on the other hand, it seems a desperate resource 
 to give equality of electoral privileges to members of the 
 inferior race while admittedly unfit to control the operations 
 of government, in the mere hope that experience may in 
 time educate them up to a tolerable degree of fitness. So 
 long as the composite society presents this dilemma, it will 
 probably conduce to its wellbeing as a whole that the 
 colony should remain a dependency ; so that, even where 
 the business of government is mainly left in the hands of 
 the colonists, the control of the central government may pre- 
 vent or mitigate any palpable oppression of the inferior race. 
 
 1 Chap. XVIII. 8.
 
 CHAPTER XXVII 
 
 CONTROL OF THE PEOPLE OVER GOVERNMENT 
 
 1. IN the preceding chapters we have been considering 
 the structure of governing organs, on the assumption that 
 government is a business requiring special gifts, training, 
 and practice ; and that, accordingly, it ought to be placed in 
 the hands of a special group of persons, carefully selected 
 for the purpose. We have now to turn to an important 
 question, briefly noticed and postponed at an early stage of 
 the discussion, viz. what share in the work of government 
 should be assigned, in a modern civilised community, to 
 the mass of the citizens ? In some ages and countries 
 it has been the prevalent opinion, the established con- 
 stitutional doctrine, that the mass of the people " have 
 nothing to do with the laws but to obey them." But this 
 is not the view upon which our construction of govern- 
 ment has proceeded. In framing our supreme legislative 
 and executive organs we have adopted, in the main, the 
 principle of " representative " or " responsible " government ; 
 we have regarded it as fundamentally important, not only 
 that governors should be subject to the watchful criticism 
 of the governed, but also that the latter should periodically, 
 in selecting their governors, pass judgment on the political 
 conduct of those who seek their suffrages a second time. 
 It remains to consider whether this indirect influence on 
 government is sufficient, or whether there should be further 
 any direct intervention of the citizens at large whom, for
 
 552 ELEMENTS OF POLITICS CHAP. 
 
 brevity, I will call " the people " in legislation or govern- 
 mental administration. 1 
 
 This question is closely connected with another of 
 fundamental importance : viz. whether the freedom or 
 interests of individuals should be protected from encroach- 
 ment on the part of the legislature by any constitutional 
 rules, which the ordinary legislature is legally bound to obey. 
 For, if the latter question be answered affirmatively, the 
 direct intervention of the people is a simple and obvious 
 mode of providing for the changes that may be from time 
 to time required in such constitutional rules. It is not, 
 however, the mode actually adopted in West-European 
 states generally : 2 while to most Englishmen the very con- 
 ception of constitutional limitations on the legislative power 
 of Parliament is now unfamiliar : the old difficulty " Quis 
 custodiet ipsos custodes ? " is commonly thought to be suffi- 
 ciently met in the case of the legislature by establishing 
 representative government. And certainly in a state in 
 which the fully qualified citizens directly appoint, at intervals 
 of a few years, the members of the chief organ of legislation, 
 and directly or indirectly determine the heads of the execu- 
 tive departments, no governmental aggression on the rights 
 of individuals is likely to take place, except such as the 
 majority of fully qualified citizens receive with at least 
 acquiescence. This acquiescence may indeed be due to a want 
 of full perception of the effects of governmental measures, 
 or a want of ready sympathy with the persons who are 
 most directly injured by them : accordingly, in order that 
 the protection afforded by the representative system may 
 be as effective as possible, it is important that any persons 
 aggrieved by the action of government should have the 
 opportunity of arousing the attention and interest of the 
 mass of their fellow-citizens, by oral and written discussion. 
 And, speaking more generally, in order that the function of 
 electing legislators and administrators may be well performed 
 by ordinary electors, it is recognised as desirable we may 
 
 1 The arguments for and against the intervention of a casually selected 
 group of ordinary citizens in judicial work have already been considered. 
 
 2 See p. 560.
 
 xxvii CONTROL OF THE PEOPLE OVER GOVERNMENT 553 
 
 say indispensable that they should be enlightened and 
 stimulated by full and free criticisms of current legislation 
 and administration. 
 
 This is, indeed, in England almost undisputed : and 
 hence freedom of speech, freedom of the press, freedom to 
 assemble peacefully for the consideration and emphatic state- 
 ment of political grievances, are, in the view of Englishmen, 
 an essential part of the " free institutions " on which they 
 pride themselves : but it is not commonly felt to be neces- 
 sary that these or any other rights of individual citizens 
 should be protected by fundamental laws which the ordinary 
 legislature is legally incompetent to alter. It is held that 
 they will be sufficiently protected by public opinion and the 
 representative character of the legislature. 
 
 Accordingly, before considering the expediency of any 
 legal restraints on the ordinary legislature, it seems desirable 
 to examine more closely the nature of the moral control 
 which the representative system provides. In one view of 
 this system, the essence of representative government is 
 that " the people represented govern through their repre- 
 sentatives " : the latter are regarded as agents, appointed 
 to carry out the wishes of their constituents, and properly 
 liable to dismissal if in any point they insist on carrying 
 into effect their own judgment, in opposition to the judgment 
 of those whom they " represent." This view is manifested 
 in the demand sometimes made by a constituency that their 
 representative should resign because he does not vote as 
 they like, in the statement that the House of Commons 
 has not " received a mandate from the electors " to do such 
 and such things, and similar utterances, common in 
 England at the present time. 
 
 This view is very naturally suggested by a consideration 
 of the historical origin of representative government. I 
 shall begin therefore by pointing out that the form of 
 representative government actually established in this and 
 most other European countries Switzerland being an 
 exception is in any case ill adapted for realising this 
 conception of its spirit and design.
 
 554 ELEMENTS OF POLITICS CHAP. 
 
 2. If the framers of a constitution really aimed at making 
 the will of the majority, at any given time, supreme in legis- 
 lation, it would be easy to make regulations which would at 
 any rate secure a much closer approximation to this result 
 than is realised under the ordinary representative system of 
 government. It would be easy to introduce what is known 
 in Switzerland as the " Obligatory Eeferendum " : l i.e. to 
 treat all parliamentary deliberation as merely preliminary, 
 and enact that all Acts of Parliament should be submitted 
 to the electors for formal approval before they become valid 
 as laws. It would be possible, indeed, to go further still, and 
 introduce the right of " Initiative " actually established in 
 some Swiss cantons : i.e. to make it the duty of the Legislature 
 to publish legislative proposals brought forward by a certain 
 proportion of the electorate, and cause them to be voted on by 
 the constituents at local polling places. Perhaps it may be 
 held that it would be absurd to throw on the people at large 
 the actual work of legislation, since the people only form 
 general aims and wishes, for which it is the business of the 
 legislative expert to supply appropriate particular rules fit to 
 be enacted, but that these general aims and wishes should 
 be regarded as paramount by a representative legislature. 
 And certainly it would be difficult for the citizens at large 
 to perform effectively the complicated discussion that is often 
 required to mould a legislative scheme into the most accept- 
 able form. Nor would it be practicable for the constituents to 
 direct the action of the representative in every detail during 
 such discussions ; since it would sometimes happen that com- 
 promises and modifications were suggested at the last moment, 
 rendering any previously expressed wishes of the constituents 
 irrelevant to the issue finally put to the vote ; while to give 
 time for a reference to the constituencies in all cases would in- 
 volve intolerable delay. Still this difficulty need not prevent 
 the allotment of a large share of direct control to the people 
 at large. For a substantial amount of such control could 
 
 1 In contrast to the "Facultative Referendum": by which a measure 
 is referred to the popular vote, only when such reference is demanded by a 
 certain number of citizens.
 
 xxvn CONTROL OF THE PEOPLE OVER GOVERNMENT 555 
 
 be secured to a constituency by making it the constitutional 
 duty of a representative to conform in his parliamentary 
 voting to all clear and precise instructions laid down by 
 a majority of his constituents ; and it would be easy to 
 arrange that except in case of urgency no clause of a 
 law should be finally passed by a representative assembly, 
 without time being allowed for a vote of the citizens in any 
 constituency ; and that any resolution passed by a majority 
 of those voting should be binding on the representative. It 
 would doubtless be inconvenient to allow legal doubts to be 
 raised as to the validity of laws, on the ground that the 
 legislators had disobeyed their constituents ; but the simple 
 expedient suggested by Bentham, of giving such a majority 
 the right of dismissing a representative at any time, would 
 generally suffice to prevent any wilful disobedience ; and, 
 assuming that elected legislators are to be regarded as 
 mere agents of their electors, it seems clearly most con- 
 sistent to make them thus promptly dismissible. Or, perhaps 
 to avoid the practical mischief of distracting the attention 
 of the elected legislator from his legislative functions it 
 would be better, if this view were adopted, to renew his 
 appointment annually ; taking a vote of the electors, in case 
 of a contest, during the parliamentary vacation ; and the 
 final ratification of the legislative measures of the year 
 might be deferred till this annual election, so as to give the 
 people a regular opportunity for cancelling any unpopular 
 legislative innovation. 
 
 These suggestions have a paradoxical appearance. But 
 I am seriously disposed to think that, if the doctrine which 
 reduces the representative to a mere delegate, bound to carry 
 out from day to day the wishes of his constituents so far 
 as he can ascertain them, were firmly established as a part 
 of constitutional morality, there would be important advan- 
 tages in making this obligation more definite and stringent 
 by such arrangements as I have above suggested. For, if 
 this were done, the electorate would express their wishes 
 under a more serious sense of responsibility, and their real 
 desires would be more likely to be ascertained ; it would
 
 556 ELEMENTS OF POLITICS CHAP. 
 
 be less easy for a fanatical or intriguing minority to 
 assume the semblance of a majority. 1 At the same time, I 
 do not think that changes of this kind would bring us to a 
 system of government which is either abstractly desirable 
 or the best attainable. I think that the periodical election 
 of legislators should aim at being as far as possible a 
 selection of persons believed to possess superior political 
 capacity ; and it seems reasonable to assume that the 
 responsibilities and experience of such persons must tend 
 materially to increase their original advantage in political 
 insight. I therefore think that it cannot conduce to good 
 government to let their judgment be overruled at any 
 moment by the opinions of a comparatively ignorant and 
 inexperienced majority. I consider, on the contrary, that a 
 representative who does not follow his- own best judgment in 
 the exercise of his governmental functions even when it 
 brings him into conflict with the temporary opinions and 
 sentiments of a majority of his constituents should be 
 held guilty of a plain dereliction of duty. 
 
 It may perhaps be said that the absurdity of " folly 
 controlling skill " is inherent and inevitable in the system 
 of government that we have been throughout contemplating : 
 that, in any case, the ignorant have to judge the experts at 
 the periodical election, which is just as absurd as overruling 
 their opinions at any other time ; and that the prospect of 
 this judgment must cause elected governors to yield to all 
 decided popular prejudices and wishes. I admit the force 
 of the objection. I think, however, that the practical danger 
 that it signalises may be very materially reduced, if the 
 duration of parliament be adequately prolonged ; for if a 
 body of electors is normally called upon to express a practi- 
 cally decisive opinion on the conduct of their representative 
 only at intervals of some years, the more intelligent electors 
 will probably be able to judge of at least important parts of 
 
 1 Similar arrangements might be made for bringing the Supreme Executive 
 under direct popular control ; but I have not thought it necessary to work 
 these out, as I think that the disadvantages of such arrangements would in 
 any case outweigh the drawbacks.
 
 xxvn CONTROL OF THE PEOPLE OVER GOVERNMENT 557 
 
 his conduct after events have unmistakably shown their 
 wisdom or unwisdom. This consideration, I hold, shows us 
 the grounds on which the proper duration of parliaments 
 should be determined : while they should not be so long as 
 to weaken the sense of responsibility in the person elected, 
 they should be long enough to give an honest and intelligent 
 elector a fair opportunity of taking the measure of the 
 intellectual and moral qualifications of his representatives. It 
 is, of course, impossible to deduce from general considerations 
 the exact number which fulfils best these two conditions : 
 but I may perhaps say that a period of five, six, or even 
 seven years, appears to me to fulfil them very fairly. A 
 period of this length gives the electors fair opportunities of 
 judging, with regard to members of parliament who offer 
 themselves for re-election, whether they have consistently 
 carried out the principles and pursued the aims avowed by 
 them at the time of their election, and how far their fore- 
 cast of consequences has been confirmed by events ; while, 
 on the other hand, the period is not long enough to lead 
 either side to forget the promises and predictions made at 
 the beginning of the period, or the account which will have 
 to be rendered at its close. 
 
 I have spoken of " promises " ; but, on the principle 
 above laid down, no Pledges, strictly speaking, should be 
 required of candidates by their constituents. Declarations 
 of opinions and present intentions may reasonably be given 
 and demanded, and are indeed necessary, if the respon- 
 sibility of the representative to his constituents is to be 
 effectively maintained. It is also reasonable that new 
 candidates should be partly chosen for the conformity of 
 their declared opinions and intentions with the views of 
 their constituents. It is not to be expected that the latter 
 should choose a representative who disagrees with them on 
 matters seriously affecting their interests, and falling within 
 the range of their personal experience ; it is not to be desired 
 that any considerations should induce them to elect an 
 avowed supporter of measures opposed to their moral con- 
 victions. But in dealing with questions of mere political
 
 558 ELEMENTS OF POLITICS CHAP. 
 
 expediency, recognised as such, and on which they cannot 
 suppose themselves to have empirical knowledge, it can 
 hardly be the duty of every citizen of a free community to 
 construct for himself a set of fixed political dogmas, and to 
 adhere to them in defiance of the judgment of any other 
 person, however greatly his superior. It rather appears to 
 me important to keep alive in the mass of comparatively 
 ignorant and uneducated persons a due consciousness of their 
 inferior means and opportunities of forming a judgment on 
 most political questions, as compared with the means and 
 opportunities possessed by persons of more education and 
 leisure. What the electors have to do is to choose the man 
 best qualified for the business of government, not to teach 
 him his business : and they have obviously in many cases 
 means of judging of the candidate's qualifications other than 
 that of ascertaining his agreement with their own opinions 
 on contemporary political questions; such as specific ex- 
 perience of matters, public or private, which he has managed 
 well, or evidence of grasp and reasoning power shown in 
 books or other writings : evidence of character too is very 
 important. They cannot, doubtless, always have evidence of 
 this kind with regard to new candidates : but I am inclined 
 to think that the more exacting they show themselves in 
 requiring it, the better on the average will be the quality of 
 their governors. 
 
 3. For the reasons given in the preceding section, I do 
 not think it expedient that there should be any regular 
 and direct intervention of the people in ordinary legislation, 
 or a fortiori in the administrative work of the central 
 government. The considerations above urged undoubtedly 
 apply less strongly to local government, as the matters with 
 which this deals fall more within the range of the experience 
 of ordinary citizens. But even here it seems to me that the 
 normal action of the latter is likely to do most good with 
 least harm, if it is confined to criticism and periodical 
 appointment of the persons primarily responsible for govern- 
 mental decisions : though the duration of office may with 
 advantage be shortened in the case of local government, so
 
 xxvii CONTROL OF THE PEOPLE OVER GOVERNMENT 559 
 
 that the indirect control of the governed may be closer and 
 more sustained. 
 
 There are, however, special cases in which the direct 
 intervention of the people in legislation appears to me on 
 the whole advantageous. The first case arises when in a 
 legislature constructed on the two-chamber system it is 
 important to avoid the deadlock resulting from a disagree- 
 ment between the two chambers : i.e. when the urgency of 
 the need of some legislation on a particular point is generally 
 recognised, but the chambers cannot agree upon the form 
 that the legislation is to take. Under these conditions, a 
 reference to the citizens at large has many advantages, as a 
 method of terminating the disagreement. The dignity of 
 either chamber is saved if it has to yield to the people and 
 not to the rival chamber ; while, by the reference of a 
 particular measure to the judgment of the citizens a more 
 clear expression of the people's will is obtained than a 
 general election of representatives can give. Again, the 
 process is more educative, since a single definite issue is 
 placed before the country ; it also avoids the danger involved 
 in the representative system, that an interested or fanatical 
 minority of citizens may, by concentrating its whole voting 
 power at a general election on a particular question, obtain 
 a fictitious majority of representatives pledged to support its 
 demands. In the case of such a reference to the people as 
 this, in the course of ordinary legislation, and with the 
 consent of both chambers, a simple majority of those voting 
 would naturally be decisive. 
 
 Another case, in which a similar exercise of governmental 
 functions by the citizens at large is for different reasons to 
 be recommended, is when changes are proposed in con- 
 stitutional rules designed to have greater stability than 
 ordinary laws. A modern civilised state as we have 
 already assumed will be normally a constitutional state, 
 in which all the organs of government carry on their work 
 under certain fundamental laws, which at once assign and 
 limit their powers. "We may assume that such laws should 
 be somehow legally alterable : it is prima facie reasonable
 
 560 ELEMENTS OF POLITICS CHAP. 
 
 that it should be beyond the power of the ordinary legisla- 
 ture to change them ; and it is obviously desirable that so 
 long as they exist they should have the support of popular 
 acceptance. If so, there seems to be no way so effective to 
 secure the desired stability and popularity at once, as to 
 place them formally under the guardianship of the people 
 at large. This may, no doubt, be done indirectly, according 
 to the method adopted in several European constitutions, by 
 requiring any change in the constitution to be approved by 
 two successive legislatures, so that a general election may 
 always intervene between the proposal of the change and 
 its final adoption. But, it seems undesirable that legis- 
 lators should be elected solely on account of their opinions 
 on one particular question ; and on the whole better that, 
 where the assent of the people at large is required for the 
 validity of any legislative change, this assent should be 
 sought and given in a direct and simple form. 
 
 I pass, therefore, to consider how far it is really ex- 
 pedient to give special stability to a certain portion of the 
 law of the state ; and on what principles the portion thus 
 rendered exceptionally stable should be determined. 
 
 4. "We may begin by removing certain ambiguities 
 which are found in the ordinary political use of the terms 
 " constitution," " constitutional." In states where there 
 are certain laws not alterable by the ordinary process of 
 legislation, this body of specially stable laws is commonly 
 spoken of as " the constitution " without regard to its sub- 
 ject-matter. According to this use of the terms, a " con- 
 stitutional" rule (1) is always strictly a law, and (2) its 
 essential distinction from other laws lies in the fact that a 
 special process is required for abrogating or altering it. 
 But, according to another no less common usage, the same 
 terms are implicitly defined by reference to the subject- 
 matter of the rules which they denote. In this sense a 
 " constitution " is understood to mean a body of rules that 
 either (a) determine the structure of government the 
 mode of appointment of different organs, and the distribu- 
 tion of functions and powers among them or (Z>) impose
 
 xxvn CONTROL OF THE PEOPLE OVER GOVERNMENT 561 
 
 obligations, positive or negative, on the government in the 
 interest of the governed, and thus establish " constitutional 
 rights " of the governed which the government is bound to 
 respect. Now these two definitions are hardly ever com- 
 pletely coincident in their application ; and sometimes they 
 do not coincide at all. For (1) important points in the 
 actual structure of any government may be determined not 
 by law, but merely by custom, convention and prevalent 
 opinion possessing no legal force as we have seen to be 
 the case in England. The whole structure, no doubt, cannot 
 be so determined ; since in every orderly state there must 
 be some law determining the persons who have a rightful 
 claim to supreme legislative authority ; even an absolute 
 monarchy must have a law of succession. But (2) there is 
 no necessity that such structural laws should be enacted or 
 modified by a process different from ordinary legislation ; or 
 that there should be any legal limitations whatever on the 
 power of the legislature when once constituted. In fact, 
 as we have seen, there are no such limitations in England 
 or at least none definitely recognised. The law determin- 
 ing the structure of the English Parliament is alterable by 
 precisely the same process as any other part of English 
 law : no one (e.g.} has ever doubted that the House of 
 Lords might be abolished at any time by a simple Act of 
 Parliament. Now where this is the case it would be para- 
 doxical to say that there is " no constitution " as we should 
 have to say if we used the term consistently in the sense 
 first explained. It is better to express the difference by 
 saying that in such a case the constitution is Flexible : 
 while, if the legal structure of government cannot be altered 
 by the ordinary process of legislation, we may call it more 
 or less Kigid, according to the difficulty of the process of 
 change. 
 
 The grave and I think decisive disadvantage of flexi- 
 bility lies in the ease with which fundamental changes may 
 be made ; so that valuable rules and institutions may be 
 abolished in a transient gust of unpopularity, and thus lose 
 irreparably the stability given by antiquity and unbroken 
 
 20
 
 562 ELEMENTS OF POLITICS CHAP. 
 
 custom. The danger varies, of course, according to the 
 manner of composition of the legislature : but it seems 
 likely to be important in the case of any state in which 
 the legislature is solely or mainly composed of persons 
 popularly elected for short periods. The corresponding 
 drawbacks of rigidity are partly that clearly expedient 
 changes are prevented, partly that, by making change more 
 difficult, the danger of violent revolution is increased. These 
 drawbacks perhaps render it dangerous to require for a 
 constitutional change a preponderance of votes so great that 
 a majority, large enough to be plausibly described as " the 
 nation," is still constitutionally unable to change its funda- 
 mental laws. But this objection could hardly be serious 
 if no more than an absolute majority of the votes of the 
 citizens were required for the validity of such changes ; 
 since a restraining rule can hardly be felt as an intolerable 
 burden by citizens who will not take the trouble of walking 
 to the polling-places to get rid of it ; at the same time, this 
 requirement seems an important protection against hasty 
 changes. Perhaps a constitution protected in this way 
 and by the requirement of a similar majority in at least one 
 of the chambers of the central legislature, 1 before any change 
 could be proposed would have as high a degree of stability 
 as it is desirable to aim at in a unitary state. 2 
 
 There are, however, certain further disadvantages attach- 
 ing to a rigid constitution which require careful considera- 
 tion. Firstly, when changes are proposed, the attention of 
 statesmen and of the public, which should be concentrated 
 
 1 Iii a two-chambered legislature, in which the members of both chambers 
 are appointed by periodical election, an absolute majority in each of the two 
 chambers might reasonably be required to concur in bringing forward any 
 change in the constitution. But to allow a non-elective senate permanently 
 to obstruct constitutional change, would obviously not be consistent with 
 the popular basis here advocated for the constitution. The refusal of con- 
 sent by such a senate should therefore only have the effect of delaying 
 for a time a change supported by an absolute majority of the house of repre- 
 sentatives ; and any power of veto vested in the supreme executive should 
 be similarly limited. 
 
 2 For the reason why a federal constitution is naturally more stable, see 
 Chap. XXVI. 4.
 
 xxvii CONTROL OF THE PEOPLE OVER GOVERNMENT 563 
 
 on the difficult task of weighing considerations of expediency 
 for and against the change, is liable to be inconveniently 
 distracted by the question of its legality ; secondly, it 
 is hard to find a satisfactory authority for deciding 
 this latter question. The former disadvantage is to some 
 extent inevitable ; but in order to minimise it, minute and 
 complicated constitutional restraints should be avoided as 
 far as possible. The difficulty of finding an unexceptionable 
 organ for deciding disputed questions of constitutional 
 interpretation may be met in various ways ; none of which, 
 however, is altogether satisfactory. 1 
 
 Prima facie, this interpretative function belongs to the 
 judiciary ; at the same time, an arrangement by which the 
 judiciary has to sit in judgment on the legislature is open 
 to certain objections. In the first place, in the ordinary 
 administration of justice, the function of the judge comes 
 into play when a breach of law requiring reparation or 
 punishment is alleged to have been committed; but if an 
 act is passed by the legislature in excess of its constitu- 
 tional powers, it seems hard that an ordinary citizen should 
 suffer either for obeying or for disobeying it. To prevent 
 this, an authoritative decision on the validity of the act 
 might be obtained from a responsible body of legal experts 
 before it was finally passed; but such a decision is hardly 
 likely to carry as much weight as one arrived at in the 
 ordinary way of litigation, after the court has heard the 
 
 1 It is to be observed that this difficulty may conceivably arise even when 
 the structure of government is flexible ; since any structural rules, limiting 
 the powers of governmental organs, may lead to disputes as to the power of 
 one or other organ, even though such rules are as alterable as ordinary laws ; 
 and it may not be possible to settle such disputes by new legislation, if 
 ordinary legislation requires the agreement of several differently appointed 
 bodies or individuals. Especially where the Executive is not dismissible by 
 Parliament, and has a veto on new legislation, it is not unlikely to disagree 
 with the legislature as to the exact limits of its powers under the existing 
 law. In such a case the question must arise who is to settle the point at 
 issue ; and it will be a disadvantage if the constitution whether fixed by 
 precedent or by statute does not clearly assign, either to the ordinary 
 judiciary or to some other body, the function of decisively interpreting 
 the rules.
 
 564 ELEMENTS OF POLITICS CHAP. 
 
 arguments of professional advocates on both sides. Perhaps 
 it would be, on the whole, best that a short interval should 
 be allowed in which objections might be formally taken to 
 the constitutionality of any new law passed by the legisla- 
 ture, and that if such objections were taken the law should 
 not come into operation until the points raised had been 
 argued before and decided by a tribunal. In case no such 
 objections were taken the decision of some body of legal 
 experts without litigation perhaps the Law Council before 
 suggested might be final. 
 
 But the plan of making the ordinary judges interpreters 
 of the constitution has drawbacks of a more fundamental 
 kind. Since it confers on the judges a final and supreme 
 power of practically determining the law, wherever the 
 constitution is ambiguous and a majority sufficient to 
 change it unattainable, it introduces a danger that the 
 judges may be drawn into party conflict, and the confidence 
 in their impartiality thereby be impaired. And from the 
 same cause there arises a further danger that the legislature 
 or the executive may be tempted to misuse its control over 
 the appointment and dismissal of judges, in order to obtain 
 a tribunal subservient to its wishes ; while yet the with- 
 drawal of all control of this kind would leave the judges in 
 too independent a position. 
 
 On the other hand, if, to avoid these difficulties, we leave 
 the interpretation of constitutional rules to the ordinary 
 supreme legislature, 1 we can hardly expect an impartial 
 decision in any dispute as to the limits of constitutional 
 restraints imposed on legislation. If, therefore, in the 
 case of any legislation that excites strong opposition, 
 the charge of transgressing constitutional limits is urged 
 against the parliamentary majority by their opponents, 
 it is likely to be a permanent source of resentment, 
 and seriously to aggravate any discontent that the dis- 
 puted legislation may cause on other than constitutional 
 grounds. 
 
 1 This objection obviously applies still more strongly to the central legis- 
 lature in a federal state.
 
 xxvii CONTROL OF THE PEOPLE OVER GOVERNMENT 565 
 
 (I may here notice a simpler and more drastic method 
 of avoiding the evils of a conflict among the organs of 
 government, viz. by depriving all constitutional rules of 
 strictly legal force as against the supreme executive, and 
 making it the duty of the judges to regard its commands 
 as finally valid : since this is an interpretation of " Con- 
 stitutional Monarchy " still surviving in Germany. It 
 might doubtless sometimes assist the monarch in meeting 
 a dangerous crisis, by facilitating a salutary extension of 
 executive power which would otherwise be illegal and dis- 
 orderly. But this advantage appears to me too dearly 
 purchased by a sacrifice of the normal relation between 
 the legislature and the executive.) 
 
 Another possible method would be to refer to the 
 citizens at large any question of legislative change of 
 which the legality is disputed by a sufficiently large 
 minority in the legislature. This plan, however, is open 
 to the objection that the citizens at large are obviously not 
 qualified to decide disputed points of interpretation : and it 
 is liable to make the constitutional rules practically more 
 elastic than they were designed to be, if the assent of a 
 mere majority of the votes given is sufficient, and more 
 stringent than they were designed to be, if it is not 
 sufficient. 
 
 On the whole, the judicial method, with the modifica- 
 tions above suggested, seems preferable in a unitary no less 
 than in a federal state ; though the disadvantages of it 
 appear to me to constitute a strong reason for reducing to 
 a minimum the restraints on legislation which it is thus 
 left to the judiciary to interpret and apply. 
 
 In any case, changes in a rigid constitution should be 
 initiated by the ordinary central legislature : to allow them 
 to be initiated outside it would tend to diminish its re- 
 sponsibility and influence, and withdraw a security against 
 hasty change without any corresponding advantage. At 
 the same time, when extensive changes are desired, there is 
 some advantage in calling a special convention to consider 
 the details of such changes : as there may be persons
 
 566 ELEMENTS OF POLITICS CHAP. 
 
 recognised as peculiarly qualified for this important work 
 who are not members of the ordinary legislature. 
 
 5. Let us now examine more closely the kinds of 
 constitutional rules that it is expedient to render unalter- 
 able by the ordinary legislature if a rigid constitution be 
 adopted. 
 
 Such rules fall naturally under three heads : 
 
 (1) First will come the class of rules that are primarily 
 suggested by the original meaning of the word " con- 
 stitution " : i.e. rules determining the mode of appointment 
 and dismissal of the persons composing the different organs 
 of government, or determining the distribution of functions 
 among them. Of such rules the discussion in the preced- 
 ing chapters will have already afforded abundant examples. 
 E.g. the constitution of the legislature as one-chambered or 
 two-chambered ; the conditions of tenure of the office of 
 legislator in either chamber ; the duration of Parliament ; 
 the general definition of the electorate, and the principles 
 of its division into constituencies ; the mode of appointing 
 (and, if dismissible, of dismissing) the Supreme Executive ; 
 regulations for securing adequate independence to this and 
 to the judicial organ ; the composition of the latter, especially 
 as regards the introduction of a non-professional element in 
 the form of the jury ; these points will all be naturally 
 and properly determined in a rigid constitution, so as to be 
 unalterable by ordinary legislation. And, of course, in a 
 federal state the division of powers between central and 
 local governments must be so determined. 
 
 (2) In the second place will come rules determining the 
 procedure of the organs of government, or limiting the 
 modes of action available for performing their recognised 
 duties or supplying their admitted needs. Such rules may 
 relate to the legislature, as the rule that no legislative 
 proposal be passed by either chamber, until after it has 
 been considered a certain number of times, or the rule 
 prohibiting ex post facto legislation ; or again to the 
 judiciary, as the rules prohibiting judges from receiving 
 fees for their own use. But in modern constitutions
 
 xxvn CONTROL OF THE PEOPLE OVER GOVERNMENT 567 
 
 generally it is for the executive especially that such 
 restraints have seemed necessary: as, for example, the 
 rules prohibiting " unreasonable searches of houses," or the 
 opening of letters in the post-office, or the detention in 
 prison of persons before trial, unless accused of certain 
 grave offences ; or the arrest of an alleged criminal other- 
 wise than on a definite charge communicated to him. 
 
 The rules just mentioned, while affecting importantly 
 the methods of governmental interference, do not limit or 
 prescribe the kind of laws that Government is to lay down 
 for the conduct of the citizens at large or in any way 
 determine the mutual legal relations of the latter. They 
 are thus distinguishable from (3) a third class of rules, 
 designed to prevent Government from interfering at all in 
 certain matters, or to establish certain general legal relations 
 among the citizens which Government is bound to main- 
 tain. Examples of this third class are rules prohibiting 
 interference with religious belief or worship, or civil dis- 
 qualifications on the score of race : and also in respect of 
 part of their scope 1 rules prohibiting legislation that 
 takes private property without compensation, or impairs 
 the obligation of a contract. 2 
 
 The particular rules falling under the two latter heads 
 that ought to form part of a rigid constitution will properly 
 be determined to a great extent by the special customs and 
 traditions of the state in question, and its experience of the 
 need of protection against oppressive governmental inter- 
 
 1 Such rules will fall under the second head if the property is taken for 
 the use of Government, or the contract made on behalf of Government. 
 
 2 In West- European constitutions the constitutional provisions that fall 
 under this third head are usually of the broad and general kind exemplified 
 in the text. But the case is different in many of the State Constitutions 
 of the United States. We find there "minute provisions regarding the 
 management and liabilities of corporations, ... we find a declaration of 
 the extent of a mechanic's lien for work done ; we even find provisions for 
 iixing the rates which may be charged for the storage of corn in ware- 
 houses " (Bryce, American Commonwealth, Part II. chap, xxxvii.). But to 
 include in a constitution the determination of such details as these 
 obliterates all distinction so far as subject-matter is concerned between 
 constitutional rules and ordinary laws : and it is difficult to find any 
 adequate general reasons for such a procedure.
 
 568 ELEMENTS OF POLITICS CHAP. 
 
 ference by any organ, or against misconduct of legislators 
 or members of the executive considered as individuals. 
 We may, however, distinguish certain classes of cases in 
 which there appear to be special reasons of different 
 kinds for regarding the ordinary legislature as liable to 
 be biassed in a direction opposed to the interests of the 
 community. 
 
 Firstly, it may be possible by constitutional rules to 
 counteract to some extent the tendency of legislators to 
 sacrifice the public interest to their interests as individuals. 
 For instance, they are under some temptation to vote them- 
 selves pay or privileges which it is not for the good of the 
 community that they should have : this danger, then, may 
 be met either by fixing in the constitution the emoluments, 
 if any, and the personal privileges of members of parlia- 
 ment ; or less rigidly by providing that no legislation 
 increasing the emoluments or privileges of members of 
 parliament should affect the legislators who pass it until 
 after they have been re-elected. 
 
 Secondly, in any form of polity except where the 
 supremacy of Parliament is intended to be practically com- 
 plete and undisputed, there is a danger that the esprit de 
 corps of the legislature may prompt to encroachments im- 
 pairing the qualified independence of the other organs, unless 
 this independence be protected by constitutional securities. 
 This class of rules has been sufficiently illustrated in previous 
 Chapters (XXII. and XXIV.). 
 
 Thirdly, a dominant party in Parliament may be tempted 
 to tamper with its elective basis, in order to gain a party 
 advantage. For this reason I conceive that the maximum 
 duration of Parliament, the general principles on which the 
 electorate is divided into separate constituencies, and other 
 important points in the arrangements for electing legislators, 
 should, in a rigid constitution, be placed beyond the control 
 of the ordinary legislature. For a similar reason, it may 
 be desirable to limit the power of any legislative assembly 
 to determine its own rules of ordinary procedure and inflict 
 penalties for the breach of them, in case experience shows
 
 xxvn CONTROL OF THE PEOPLE OVER GOVERNMENT 569 
 
 that this power is practically liable to be exercised oppres- 
 sively towards minorities. 
 
 Fourthly, the legislature, acting bona fide for what a 
 majority of its members believe to be the good of the com- 
 munity, is likely to have from time to time so keen a desire 
 for the attainment of particular governmental ends by legis- 
 lation as to be tempted to underestimate the comparative 
 importance of protecting the freedom of individuals from 
 oppressive governmental interference ; and may thus be led 
 to abrogate or suspend, without sufficient cause, rules and 
 institutions designed to protect this freedom. 
 
 6. This last consideration has been the chief ground 
 for many important structural rules in modern constitutions, 
 such as the rule securing trial by jury in criminal cases ; 
 and it is, I think, by far the most important argument 
 for maintaining constitutional rules other than those relating 
 to the structure of government. It should, however, be 
 observed that it is often a matter of considerable difficulty 
 to frame such rules with sufficient precision to make 
 them legally effective, without at the same time hampering 
 the legislature unduly. Hence, in many cases the declara- 
 tions of " fundamental rights of citizens," that have been 
 included in modern constitutions, would seem from their 
 vagueness to be chiefly designed to produce a moral effect ; 
 so far as they impose legal restraints, these seem to be often 
 hardly more than formal. 1 
 
 I may conveniently illustrate this difficulty by considering 
 more particularly the fundamental rules securing freedom of 
 speech and of the press, which find a place in most modern 
 constitutions in which " fundamental rights " are enumerated: 
 since such rules have a special importance when we are 
 
 1 For instance, the prohibition of "ex post facto legislation" will pre- 
 vent the avowed infliction of penalties for mischievous acts that were not 
 legally prohibited when they were done ; but it will not legally though 
 it may morally restrain a legislature from inflicting damages on the persons 
 who did the acts, so long as it is not inflicted avowedly as a penalty. So 
 again, the rule "that private property is not to be taken for public use 
 without just compensation " would not legally restrain a legislature from 
 giving inadequate compensation, owing to the vagueness of the term 
 "just."
 
 570 ELEMENTS OF POLITICS CHAP. 
 
 considering the general relation of the governed to the 
 government as a whole. 
 
 We have seen that the control over government given 
 to the governed by periodical elections is likely to be com- 
 paratively ineffective and ill-directed, unless the danger of 
 blindness or apathy on the part of the governed be met by 
 full and free criticism of current legislation and adminis- 
 tration. At the same time, such criticism is likely to be 
 often very distasteful to the governmental organs criticised, 
 even when it is highly useful : hence there is a prima 
 facie reason for including in any rigid constitution rules 
 protecting the citizen's right " to speak the thing he 
 will " from undue governmental interference. But with a 
 view to the maintenance of order, it seems important that 
 this protection should only be given to criticism that 
 (1) is bona fide intended to recommend only legal methods 
 for obtaining the reform of what is criticised, and (2) would 
 not be understood as an incitement to illegality by a person 
 of ordinary intelligence. And in applying this maxim due 
 regard must be had to cases where agitation is undoubtedly 
 on foot tending to cause attempts to overthrow or resist 
 government by violence ; since it is obviously possible for 
 speakers and writers in such circumstances to fan the 
 flames of sedition dangerously, by utterances which are kept 
 carefully free from any recommendations to illegality. We 
 before observed that expressions of opinion which would not 
 ordinarily be incitements to violations of private rights may 
 become so through the special circumstances attending their 
 utterance ; and the same is obviously true of offences against 
 government. Hence any constitutional rule restraining the 
 legislature from " abridging freedom of speech or of the 
 press " will require to be qualified by a tolerably compre- 
 hensive permission to prohibit seditious utterances. 
 
 So again : it is an important practical security for free- 
 dom of political utterance that a man shall not be prevented 
 from writing and publishing what he likes, by any interfer- 
 ence, before the act, of an executive official, but only 
 restrained by the dread of punishment judicially inflicted
 
 xxvii CONTROL OF THE PEOPLE OVER GOVERNMENT 571 
 
 after publication. It is, indeed, indispensable to maintain 
 this security, if we are to get the advantage of free criticism 
 of the acts of the executive : since the question whether 
 such criticism has kept within the legal limits laid down 
 for it is too delicate a one to be left to the judgment of 
 the persons criticised. But it does not follow that there 
 should be no special press law : and it would be inexpedient 
 that such a law should be constitutionally prohibited : since 
 the power and the inducements that an unscrupulous editor 
 of a newspaper has to disseminate calumnies about public 
 officials or even private persons in any way important 
 constitutes a grave danger, against which it is desirable to 
 take special precautions. Thus (e.g.'), to facilitate the in- 
 fliction of deserved punishment the names of printer and 
 publisher if not of author or editor should be affixed to 
 published documents : while to diminish the danger of libels 
 without imposing the necessity of legal proceedings, it seems 
 reasonable that newspapers should be compelled to publish 
 gratis a reply from any person whom they have attacked 
 provided such reply does not exceed the attack in length or 
 in violence of language or at least to publish a reference 
 to any other journal in which such a reply may appear. 
 
 So far I have been treating the relation between govern- 
 ment and the governed, considered as individuals. The 
 constitutional rights of " free speech " and " free press " 
 have been historically associated with those of free meeting 
 and free association. But the consideration of these latter 
 rights belongs to the general question how far any special 
 need of governmental interference arises in consequence of 
 the combination of individuals for purposes not demonstrably 
 unlawful ; whether they combine transiently in public meet- 
 ings, or in leagues for some special end, to last till their 
 end be achieved, or in associations designed to be permanent. 
 This question appears to me sufficiently important to be 
 reserved for a separate chapter.
 
 CHAPTEE XXVIII 
 
 THE RELATION OF THE STATE TO VOLUNTARY ASSOCIATIONS 
 
 1. IN the first chapter of this book it was noticed that 
 Government, in the sense in which we have been concerned 
 with it, the Government whose existence is the essential 
 characteristic of political societies as such is only one 
 species of " government " in a wider sense ; and that human 
 beings, especially in modern states, are drawn together, by 
 important relations other than political, into associations 
 which have a kind of government. The most venerable 
 of these and the only associations that have had a con- 
 tinuous life rivalling that of states in duration and in 
 importance to their members have as their bond of union 
 religious belief and worship. But there are various other 
 associations, mostly with narrower and more temporary 
 aims, which are of some importance in the social life of 
 modern states : political parties and leagues ; industrial 
 associations, such as trade-unions of workmen, federations 
 of employers, joint-stock companies of capitalists ; scientific, 
 literary, and philanthropic societies of various kinds. 
 
 Any such association of persons for the realisation of 
 common aims will ordinarily have a kind of government, the 
 structure of which will often resemble more or less closely 
 that of the political government which we have been con- 
 templating. In the most ordinary type of such an associa- 
 tion if recently formed the ultimate control is vested in 
 the general assembly of the associates, whose assent is 
 required to a change in the fundamental rules : but most 
 of the detailed regulations are left to an elected council, 
 
 572
 
 CH. xxvin THE STATE AND VOLUNTARY ASSOCIATIONS 573 
 
 with perhaps an executive committee, and, in any case, 
 executive officials, appointed to carry on the work of the 
 association in accordance with the rules. 1 Sometimes such 
 associations take a federal form, and have branches in 
 different districts, with a division of functions between 
 central and local organs of management. If penalties are 
 found necessary for breach of rules as is sometimes the 
 case some quasi-judicial machinery is framed for determin- 
 ing whether such penalties have been incurred ; so that all 
 the fundamental functions of government are brought into 
 exercise. 
 
 The general distinction between the " quasi-government " 
 (if I may so call it) of such associations when neither 
 aided nor repressed by the state and the government 
 with which we are concerned as students of politics, is, that 
 the former, in an orderly community, can inflict no penalty 
 worse than exclusion from the benefits of the association, 
 and from voluntary relations with its members. Any 
 individual who withdraws from the association and is 
 content to have nothing to do with its members can 
 suffer no further penalty, except that, if by withdrawal 
 he commits a breach of contract from which the association 
 suffers damage, he may be compelled to make adequate 
 reparation, just as if he had broken any other contract. 2 Of 
 course if the government of the state confers special powers 
 on the government of the association, the penalties that the 
 latter can inflict on its own members or on other persons 
 may be eorrespondingly extended. For instance, a volun- 
 tary association of persons instructed in medicine may, 
 without any special authorisation, confer and if necessary 
 withdraw certificates of qualification for the profession of 
 medicine : but it is only in virtue of special powers con- 
 
 1 It is noteworthy that in the case of the religious association that is most 
 widely extended and powerful in the countries sharing West- European civilisa- 
 tion the Catholic Church (commonly so called) a strictly monarchical form 
 of government survives from earlier, though not the earliest, ages. 
 
 2 It is as implying this distinction that I have used the term voluntary 
 association : which is not intended, as we shall presently see, to exclude the 
 possibility of social coercion to a very serious extent.
 
 574 ELEMENTS OF POLITICS CHAP. 
 
 ferred on the association by the government of the state 
 that an uncertificated practitioner can be placed in a 
 position legally inferior to that of the holder of such a 
 certificate. Powers of this kind may be sometimes con- 
 ferred with advantage where the association in question 
 has the confidence of the public, so that the repression of 
 quackery effected by the exercise of such powers, while less 
 invidious than if it were carried out directly by Government, 
 is practically no less useful. Other minor fragments if I 
 may so say of governmental power are sometimes conferred 
 on voluntary associations whose work is of social import- 
 ance : thus, as we have seen, a banking company may have 
 the privilege of issuing notes having legal currency ; and a 
 railway company may have the power of making bye-laws 
 for the regulation of its traffic, the breach of which entails 
 penalties enforced by the ordinary tribunals of the State. 
 Usually the associations thus privileged are in return sub- 
 jected to special governmental regulation. In this way the 
 associations become as I have before said semi-public : 
 and the " quasi-governmental " powers of the bodies that 
 manage their affairs become to a certain extent " semi- 
 governmental " in the sense in which the term " govern- 
 ment " is used in this treatise. 
 
 2. But, as I have before observed, it is generally only 
 to a very minor extent that this devolution of governmental 
 powers on voluntary associations is likely to be expedient. 
 More important questions arise when we consider the 
 possibility of conflict between the government of the great 
 coercive association which we call the State, and the 
 government or " quasi-government " of one of these volun- 
 tary associations, either within the State, or possibly 
 extending across political boundaries and including elements 
 belonging to several states. At first sight the right method 
 of dealing with such conflict may seem to be simple : since 
 it may be said if the associates break the law they may 
 be punished as individuals, and if they do not there can be 
 no ground for interfering with the association. But firstly, 
 the danger of obstinate and systematic disobedience to
 
 xxvin THE STATE AND VOLUNTARY ASSOCIATIONS 575 
 
 Government is materially increased by the formation of 
 organised associations, through the consciousness of strength 
 derived from numbers, perhaps also from wealth and 
 from the habit of concerted and combined action. And 
 secondly, there are certain kinds of acts unsuitable for 
 legal repression when done by individuals without concert, 
 which become both more gravely and more palpably mis- 
 chievous when carried out by the organised co-operation 
 of a large group of persons. 
 
 The first argument applies especially though by no 
 means solely to political leagues or associations that, seek- 
 ing to effect some particular change in the structure or 
 regular action of Government, tend in consequence to be per- 
 manently in opposition to the actual governing organs. So 
 long as such combinations confine themselves to the work 
 of influencing opinion by argument, they are a useful 
 perhaps almost indispensable means of educating the 
 electorate for the performance of their constitutional duties. 1 
 But if the conflict in which they are normally engaged 
 with existing political arrangements should become bitter and 
 exasperated, the consciousness of strength derived from the 
 organised concert of numbers constitutes a special temptation 
 to deviate into illegality. The ease with which the govern- 
 ment of a civilised state is able, under ordinary circumstances, 
 to secure obedience to its commands in spite of strong and 
 widespread aversion that may from time to time be aroused 
 among sections of the governed is largely due to its 
 manifest and overwhelming superiority in force, as compared 
 with any individual, or any scattered number of individuals 
 acting without concert : hence the greater the force that any 
 
 1 The influence of orderly political associations or " parties " on the 
 normal working of representative or popular Government is so important 
 that I propose to discuss it separately in the next chapter. 
 
 It should be observed that, if any part of the structure of Government is 
 constitutionally unchangeable, an association that aimed at changing it would 
 be prima facie illegitimate : but I do not think that it should be necessarily 
 treated as such, if it repudiates violent methods. As I consider the pro. 
 vision of absolute immutability in a constitution irrational, I think it safer 
 to interpret it loosely in practice.
 
 576 ELEMENTS OF POLITICS CHAP. 
 
 recalcitrant element can count on exerting if it defies the 
 government, the greater the danger of disorderly conflict. 
 This is not a decisive argument for discouraging such 
 associations, since increased possibility of resistance to 
 Government may be also a protection against tyranny. But 
 it constitutes an adequate ground for special repressive 
 intervention, if it becomes manifest that the ultimate design 
 of a political association is to use unlawful violence for the 
 attainment of its ends; or if, even though it formally 
 repudiates unlawful methods, its operations have a manifest 
 and persistent tendency to cause such violence. Under 
 these circumstances it is in harmony with the principle on 
 which " indirectly individualistic " interference has before l 
 been justified, that the whole corporate action of such an 
 association shall be prohibited and suppressed, even though 
 a part of its operations may be perfectly lawful ; 2 but the 
 measure should only be adopted in extreme cases, since 
 it involves the danger that the prohibited society may 
 continue to operate secretly, and that its operations may 
 thereby become more mischievous in quality even though 
 more limited in extent. 
 
 Similar reasoning is applicable to the case of more 
 transient combinations of men in political meetings of a 
 numerous character. Here the consciousness of strength due 
 to combination is not generally likely to prompt to overt 
 opposition to Government, without the additional influence of 
 inflammatory rhetoric; but a crowd under this influence 
 may constitute a serious danger to order : hence, where there 
 is reasonable ground capable of being judicially proved 
 to fear wrongful violence in consequence of the meeting, it 
 seems expedient that the meeting itself should be treated as 
 
 1 See Chap. IX. 2. 
 
 2 It will often tend to minimise the required interference if the sup- 
 pression be not performed once for all by the legislature, but from time to 
 time, so far as may be required, by the executive, temporarily invested with 
 special powers. Such powers, if they are to be useful at all, should be some- 
 what wide ; or else the attempted repression may be evaded by the recon- 
 stitution of the dangerous association under a new name : but the use of these 
 wide powers should be carefully watched by the legislature.
 
 xxvin THE STATE AND VOLUNTARY ASSOCIATIONS 577 
 
 unlawful, whether such acts fall within the design of the 
 promoters or not; and persons taking part in it should 
 be liable to penalties, if it can be shown that they had 
 means of knowing its unlawfulness. And, if experience, 
 at a particular place and time, shows that the tendency of 
 a certain kind of meeting to cause crime is sufficient to 
 constitute a serious danger, it is not beyond the scope of 
 " indirectly individualistic " interference that the Executive 
 Government should have the right of preventing the evil : 
 either by prohibiting it altogether, or by sending an official 
 to watch the proceedings and close the meeting if the 
 oratory becomes dangerous. It seems, therefore, inexpedient 
 to restrain the legislature absolutely, by a constitutional 
 rule, from conferring on the executive powers to prohibit or 
 close public meetings : but as there is an obvious risk that 
 such powers may be abused, it is important that they 
 should only be conferred (or in case of urgency temporarily 
 assumed) on special grounds, and exercised under careful 
 limitations. 1 
 
 3. The other important ground for interference with 
 associations was incidentally noticed in a previous Chapter 
 (IV.) in speaking of " moral coercion." We there observed 
 that acts which would not merit legal repression apart from 
 their coercive purpose, may become mischievous encroach- 
 ments on freedom if they are threatened and done by A with 
 a view to induce B to act contrary to his own interests 
 and inclinations. To a great extent, however, this kind of 
 mischief, so far as it is caused by individuals acting inde- 
 pendently, must be left to be repressed by public opinion ; 
 partly on account of the general difficulty of proving an 
 act to be criminal, when the criminality lies solely in the 
 coercive design with which effects, in themselves legitimate, 
 are produced. But where this kind of coercion is threatened 
 and carried out by an association, it becomes generally easier 
 to prove the coercive intention from the mutual discussion 
 and arrangement which such combined action necessarily 
 
 1 As to the manner in which such limitations should be enforced, see 
 Chapter XXIV. 8 and 9. 
 
 2P
 
 57 8 ELEMENTS OF POLITICS CHAP. 
 
 involves : while at the same time the increase of power, 
 which association tends to give, increases the danger of 
 oppression and the need of Governmental interference to 
 protect the freedom of the persons threatened. 
 
 Attention has been recently called to this point by the 
 appearance in Ireland, and subsequently in the United 
 States, of " boycotting," or concerted refusal to have com- 
 mercial dealings with certain individuals, whom the boy- 
 cotters wish to coerce into some action which the persons 
 coerced regard as contrary to their interests. A comparison 
 of this practice with the ordinary operation of trades-unions 
 in England, for the purpose of raising or maintaining wages, 
 will illustrate the different degrees in which coercive inten- 
 tion may enter into concerted action for the promotion of 
 the interests of the persons who act in concert. 
 
 When a trade-union of labourers fixes the terms on 
 which the labour of its members is to be purchased, and 
 threatens to stop work unless its terms are accepted, it may 
 be said and in a certain sense truly that it is trying to 
 coerce the employers of labour into action contrary to their 
 interests : but here the coercion is no more than what is 
 inevitably involved in any sale in which the seller enjoys 
 a partial monopoly and is determined to avail himself of the 
 advantage that this gives him. The aim of the trade-union 
 is merely what individualism assumes to be the aim of every 
 exchanger of commodities, to sell in the dearest market : 
 and the method adopted for realising the aim has no other 
 element of intimidation than necessarily follows from fixing 
 a price and sticking to it : it is, at any rate, only incidentally 
 coercive. But if the combination is extended to include 
 another group of labourers, who pledge themselves not to 
 purchase the products sold by the employers of the first 
 group, or not to work for any employers who purchase such 
 products, then the concerted action of the second group 
 may be said to be essentially coercive, since its tendency to 
 promote the interests of the persons adopting it depends 
 entirely on the annoyance it causes to the persons on whom 
 it inflicts loss.
 
 xxvin THE STATE AND VOLUNTARY ASSOCIATIONS 579 
 
 I think that the distinction is important, and indicates 
 the point at which the repressive action, either of law or 
 of public opinion, is required : at the same time, I think 
 that it is extremely difficult to lay down a legal rule that 
 will effectively prevent the mischief in question, without 
 imposing severe and dangerous restraints on the freedom of 
 industrial intercourse. 
 
 Firstly, in matters of buying and selling it is difficult, 
 without injustice to the poor, to place any restrictions on 
 the action of an association which are not placed on the 
 action of individuals : since in such matters the coercive 
 force capable of being exercised by an association is for most 
 purposes not more than equivalent to that of a single indi- 
 vidual whose wealth is equal to the aggregate wealth of the 
 association. Combination is, in fact, the only way by which 
 the poor can place themselves on a par with the rich in 
 bargaining. Now, we can hardly lay down as a general 
 rule that individuals are not to be influenced in buying by 
 considerations other than the quality of the article purchased, 
 and the labour spent in purchasing it ; or in selling by 
 considerations other than the price : and yet, if such other 
 considerations are admitted, it seems hardly possible to 
 exclude conditions that are designed to have a coercive effect. 
 Thus a man must be generally l allowed to exchange with A 
 rather than B, for the sake of consanguinity, or friendship, 
 or because A promotes his convenience in other ways, or 
 because B is surly and ill-mannered : but if so, he cannot be 
 prevented from using the exchange as a means of coercing 
 B to conform to his wishes in other matters besides the 
 exchange. He must be generally allowed to prefer an 
 employer who employs his friends : can he be legally pre- 
 vented from refusing to work for an employer who employs 
 
 1 I do not mean to say that, under special circumstances, it may not be 
 possible and expedient to place certain traders under the legal obligation of 
 dealing similarly with all customers, without regard to any considerations 
 other than the quality of the commodity that the customer offers in exchange. 
 I think that this kind of interference may, in certain cases, prevent more 
 harm than it causes. But it would hamper trade intolerably to make it 
 general.
 
 5 8o ELEMENTS OF POLITICS CHAP. 
 
 his enemies ? He must be generally allowed to sell on 
 miremunerative terms in order to draw business away from 
 his rivals : can he be prevented from doing this in order to 
 force a rival out of the trade ? And if such prevention is 
 impossible in the case of an individual, it will be difficult 
 to make it equitable, even if it be possible, in the case of an 
 association, for the economic reason above stated. 
 
 Further, in attempting to repress mischievous moral 
 coercion, there is a danger of preventing moral coercion 
 of a kind useful to society. For instance, it is prima 
 facie to the advantage of society that a physician should 
 refuse to consult with one whom he considers a quack : 
 he is hardly likely to do this unless he is supported by a 
 preponderance of medical opinion : and though the prepon- 
 derance of medical opinion may err, there is no general pre- 
 sumption that Government will be qualified to correct its 
 errors. Similarly, it is prima facie to the advantage of 
 society that any skilled workers should refuse to work with 
 those who use bad methods : and though in some cases the 
 criterion of " badness " applied may be the interest of the 
 class where this diverges from the interest of the community, 
 it does not seem generally advantageous that Government 
 should intervene to determine what methods are admissible. 
 Again, it is difficult to say that an employer may not refuse 
 to employ workmen of whose character he disapproves even 
 if they are efficient workmen or to require him to prove to 
 the satisfaction of a tribunal that his disapproval is well 
 grounded : and if so, a workman can hardly be prevented 
 from refusing to work for an employer, or with other work- 
 men, whose conduct he disapproves. In short, in these and 
 similar cases, it is difficult to interfere without hampering 
 the natural operation of the moral or social sanction, 
 whose indispensability as a supplement to the legal 
 sanction has been pointed out in a previous Chapter (XIII.). 
 Nor does it seem reasonable to lay down that the operation 
 of the social sanction is only salutary when it is due to the 
 spontaneous and unconcerted action of individuals, and that 
 it becomes dangerous to freedom when it is the result of
 
 xxvin THE STATE AND VOLUNTARY ASSOCIATIONS 581 
 
 concert ; since exclusion from social relations, as an expres- 
 sion of moral disapprobation, is generally likely to be more 
 judicious if performed after consultation and with knowledge 
 of the intentions of others. I admit, however, that a new 
 danger to freedom is introduced if concert in such action 
 is the result of pressure : i.e. if among the persons who 
 combine to exclude others from voluntary social relations, 
 there are some who are only induced to combine by the 
 fear of being similarly excluded if they refuse. I think 
 that this moral coercion to coerce " coercion in the second 
 degree " is usually mischievous : but it is difficult to say 
 that it is so always : it is difficult to say that there is no 
 vice so dangerous and contagious as to justify a concerted 
 refusal to associate with the associates of those who 
 practise it. And it could hardly be expedient to require 
 judicial proof of the presence of such vice in order to 
 justify this concerted exclusion : since it is often in cases 
 where such judicial proof is difficult that the social sanction 
 is especially needed to supplement the deficiencies of the 
 legal sanction. 
 
 On the whole, therefore, while admitting that the social 
 sanction may easily be misapplied in such cases, I should 
 generally prefer to leave it to the moral opinion of other 
 sections of the community to censure and repress the mis- 
 application. I conclude, therefore, that the moral coercion 
 exercised both by individuals and by associations, so far as 
 it is effected by acts legitimate apart from their coercive 
 intent, should not generally be made a legal offence, if 
 the mischief it causes can be kept within tolerable limits 
 by any other means : though any intimidation by com- 
 mitting or threatening acts of physical violence or other 
 violation of ordinary rights including breaches of contract 
 should of course be repressed with as much severity as 
 may be required. 
 
 Even where an industrial combination cannot reasonably 
 be treated as encroaching on the freedom of outsiders, or as 
 otherwise oppressive to individuals, it may still be opposed to 
 the interest of the community as a whole, so far as it aims at
 
 582 ELEMENTS OF POLITICS CHAP. 
 
 the establishment of a monopoly, total or partial, i We have 
 already seen that the theoretical demonstration of the tendency 
 of industrial freedom to promote the most economic production 
 of social utility fails in the case of monopoly : in fact, the 
 most deep-seated weakness and most formidable danger of 
 Individualism lies in the indefinite possibility which it 
 cannot but admit that the " free competition " on which it 
 relies may by " free combination " be turned into its economic 
 opposite, Monopoly. But here, again, it does not seem 
 desirable unless under very exceptional circumstances to 
 meet the danger by direct repression : since any attempt to fix 
 legal limits to the extent to which traders may profit by the 
 intensity of demand for their commodity, and the limitation 
 of its supply, would involve too extensive interference with 
 freedom of exchange. If, however, any department of produc- 
 tion shows an irresistible tendency to fall under the conditions 
 of monopoly, Government may sometimes advantageously 
 intervene in the way of industrial competition supposing 
 the business to be such as may efficiently be carried on by or 
 under the control of Government. Also, where commercial 
 associations such as railways, water companies, etc. re- 
 quire special powers of compulsory purchase, Government 
 may, in return for the grant of such powers, impose conditions 
 which may prevent any resulting monopoly from being used 
 to the disadvantage of the community. 
 
 So far I have been speaking of combinations of which 
 the aim is to promote the economic interests of the com- 
 biners. It is, of course, possible that combinations for other 
 ends political or non-political may attempt to gain their 
 ends through intimidating opponents by the threat of 
 exclusion from economic or social relations : but this 
 method is likely to be dangerous to those who use it in a 
 civilised community, so far as such an association mainly 
 depends for its force on agreement in opinion and sentiment ; 
 since it will ordinarily be liable to lose more by alienating 
 all who respect intellectual independence than it can gain by 
 moral coercion. At any rate such economic or social pressure 
 is more likely to be formidable so far as it is sustained by
 
 xxvin THE STATE AND VOLUNTARY ASSOCIATIONS 583 
 
 and partly springs from the natural exclusiveness of a 
 group of persons bound together by strong community of 
 sentiment springing from community of beliefs on matters 
 of vital moment. 
 
 4. This leads us to the question that has historically been 
 the most important of those that arise under the present 
 head, viz. as to the relation which the Government of the 
 State should take up towards religious associations. If 
 we approach this question from the point of view of the 
 State, as we naturally do in the present connection, two 
 divergent methods of treatment at once suggest themselves. 
 We may (1) start with assuming the existence of voluntary 
 religious associations, and consider how the State should 
 proceed in order that the advantages derivable from them 
 may be the greatest possible, and the dangers that they 
 involve may be avoided or reduced : or (2) we may start 
 with the existence of religious associations as problematical, 
 and consider whether the social needs that they supply are 
 needs which it is in any case the business of Government to 
 meet somehow, and, if so, how they should be met. The 
 former of these points of view is most natural to a European 
 student of Politics : at the same time, in a theoretical dis- 
 cussion of the subject, it seemed best to begin with the 
 latter ; which I accordingly adopted in a previous Chapter 
 (XIII. 5), in which I considered how far it is the business 
 of Government to provide efficient instruction in morality. 
 In the present chapter I shall adopt the other point of view ; 
 I shall assume the existence of the historic religious associa- 
 tions called Churches, with the character that they actually 
 have in the communities that share West-European civilisa- 
 tion, and shall consider what relations the State should 
 endeavour to maintain with them. I may begin by stating 
 the following conclusions, to which the previous discussion 
 seemed clearly to lead. 
 
 Firstly, the Christian churches meet a social need of 
 fundamental importance, which it would be desirable for 
 Government to supply if it could do so effectually ; while 
 yet there are strong objections to any governmental organ-
 
 584 ELEMENTS OF POLITICS CHAP. 
 
 isation for this purpose. With a view, therefore, to the 
 systematic teaching of morality, it is a gain to the State 
 that the action of the churches should be vigorous and 
 effective, so far as it is in harmony with the social and political 
 order which it is the aim of Government to maintain. 
 
 Secondly, so far as this harmony exists, the churches are 
 likely to fulfil their function better if kept independent of 
 the State. For, if the clergy acquire the character of officials 
 appointed and paid by the State, they become exposed in 
 some degree to the objections before stated against a govern- 
 mental organisation for teaching morality : and are therefore 
 likely to be less effective in rendering the service for which 
 the State appoints and pays them. 
 
 It remains to consider whether there is adequate ground 
 for governmental interference with a church or any other 
 association that offers men moral instruction and guidance 
 on account of the danger of conflict between the conception 
 of social order advocated by the Church, and that which 
 Government aims at maintaining. If the collision takes the 
 open and palpable form of incitements to resist or disobey 
 the laws or legal commands of Government, it must of course 
 be repressed : but it is a more doubtful question whether 
 the general danger of disobedience promoted by the rulers 
 or leaders of the Church or of mischievous intimidation, 
 difficult to repress by legal penalties is an adequate justi- 
 fication of a permanent interference of Government with a 
 view to avert the danger. 
 
 It would, I think, be unwise to attempt a decisive 
 general answer to this question ; since there is hardly any 
 subject on which the traditional habits and sentiments 
 which a community derives from its previous history are so 
 important a factor in determining the proper course of 
 action. But it may be pointed out that the right solution 
 of the problem must depend very much on the size of 
 the religious association in question and the character of 
 its organisation. The risk of collision is obviously less as 
 Adam Smith pointed out where there are a number of 
 small religious bodies than it is where one decidedly pre-
 
 xxvni THE STATE AND VOLUNTARY ASSOCIATIONS 585 
 
 ponderates. It is less where private judgment is encouraged 
 as in Protestant sects than it is where obedience of 
 laity to clergy, and of clergy to their ecclesiastical rulers, is 
 strongly inculcated. It is seriously intensified and com- 
 plicated when the Church is not confined within the limits 
 of one State, supposing the habit of obedience to ecclesiastical 
 rulers to be strong ; since, in this case, there will be a body 
 of persons within the State who may at any time be bound 
 by their ideas of religious duty to obey the orders of 
 foreigners. And it reaches its maximum when the foreign 
 rulers of such a church are known to have aims and interests 
 opposed to those of the particular Government with regard 
 to which the problem is being considered. 
 
 5. Supposing it decided that intervention of some kind 
 is desirable on the ground above stated, the question remains 
 of what kind. Direct prohibition of any religious teaching 
 not clearly inciting to illegal conduct, or otherwise immoral 
 in its tendency, is invidious and objectionable, as interfering 
 with the free communication of beliefs on which the develop- 
 ment of human thought depends ; and it is likely to be 
 ineffective or worse in the most dangerous cases, from the 
 ease with which opinions and sentiments hostile to govern- 
 ment may be secretly propagated among persons united by 
 a community of religious feeling, and the increased violence 
 that they are likely to assume from the resentment caused 
 by repression. 
 
 A better course is for the State to secure a certain con- 
 trol over religious teaching, by the grant of privileges the 
 withdrawal of which would only reduce the Church to the 
 level of other voluntary associations. There are various 
 methods by which this result may be attained. Firstly, 
 apart from pecuniary aid, there are various minor privileges 
 which the State may allow to religious bodies, which would 
 seem to be an obviously reasonable return for the services 
 received from them. It may give special protection to 
 religious meetings from disturbances whether of a hostile 
 kind, or caused by sellers of refreshment, hawkers, etc., if the 
 meeting is in the open air. It may give to religious beliefs
 
 586 ELEMENTS OF POLITICS CHAP. 
 
 special protection from contumelious treatment such as is 
 now given by our law of blasphemy (as reduced by modern 
 judicial interpretation), at least to the beliefs which Christians 
 have in common. It may exempt the ministers of specified 
 religious associations from compulsory civil functions, such as 
 serving on juries, and from military functions where military 
 service is compulsory ; on the other hand, it may allow them 
 to exercise certain civil functions in which they are specially 
 interested,^-such as the validation, under proper conditions, 
 of marriage contracts. It may give certain religious associa- 
 tions special opportunities of religious teaching in schools 
 where secular instruction is supported from public funds. In 
 these ways a certain amount of inducement might be given 
 to a Church to avoid as far as possible conflict with Govern- 
 ment, without anything like establishment or endowment. 
 
 But, secondly, endowment may be given in various 
 minor degrees, without converting the clergy generally into 
 salaried servants of Government. Thus, for instance, im- 
 munity from taxation may be granted to certain parts of the 
 property devoted to religious uses with the approval of the 
 State. Another degree of endowment is by the selection 
 and payment of religious teachers in certain cases in which 
 the State is specially bound to make provision for religious 
 teaching and worship : i.e. in the case of persons supported 
 from public funds, such as adults in workhouses and prisons, 
 and soldiers and sailors, and children in pauper and re- 
 formatory schools. If this provision be made in such 
 a manner as to avoid proselytism as far as possible, a sub- 
 stantial subvention which the recipients will hesitate to 
 imperil may be thus given to one or more religious 
 societies, without the cost entailed by an adequate endow- 
 ment of religious worship and teaching for the community 
 generally ; and without encountering to any serious 
 extent the awkward dilemma of either endeavouring to 
 make one set of religious opinions prevail over others held 
 by equally educated persons, or of endeavouring to moralise 
 the community by imparting a number of mutually incon- 
 sistent beliefs.
 
 xxvin THE STATE AND VOLUNTARY ASSOCIATIONS 587 
 
 A stronger means of control without anything like estab- 
 lishment may be exercised in the form of a supervision of 
 the wealth of Churches derived from private sources. If, 
 indeed, the expenses of religious teaching and worship 
 are defrayed by contributions from the incomes of its 
 members, it will be difficult for Government to interfere 
 in the employment of such contributions, without measures 
 of violent and invidious repression : but if they are paid 
 from funds bequeathed to form a permanent endowment 
 for the association, the case is different. Here, in the 
 first place, Government may refuse to admit any religious 
 society to the position of a corporation capable of holding 
 and administering property, unless its organisation fulfils 
 certain conditions, framed with the view of preventing its 
 " quasi -government " from being oppressive to individual 
 members of the association or dangerous to the State. 1 
 Secondly, Government may take advantage of a collision to 
 bring the funds of any such society permanently under its 
 control, in pursuance of its general duty of supervising the 
 management of wealth bequeathed to public objects and 
 revising the rules under which it is administered, in the 
 interest of the community at large. And it is to be observed 
 that, apart from any question of overt conflict between 
 Church and State, there are special grounds for the general 
 vigilance and occasional intervention of Government in the 
 case of bequests for religious purposes. Firstly, at the point 
 of death the influence of the priesthood is likely to be 
 especially strong, from the belief that they have exceptional 
 means of predicting and even, perhaps, of determining 
 the future happiness and misery of the dying person ; while 
 at the same time his personal interest of a mundane kind 
 in the employment of his wealth after death is then at its 
 minimum. For this reason, it may be necessary to place 
 special restrictions on testation for religious uses, rendering 
 
 1 For instance, in New York, it appears to have been the intention of the 
 legislature in a general Act for the incorporation of religious societies to 
 "place the control of the temporal affairs of the religious corporations in the 
 hands of a majority of the corporators, independent of priest, bishop, presbytery, 
 or synod, or other ecclesiastical jiidicatory."
 
 588 ELEMENTS OF POLITICS CHAP, xxvm 
 
 bequests or gifts made under the imminent fear of death liable 
 to be invalidated as such. But further, the bequest of funds 
 to be permanently employed in payment of persons teaching 
 particular doctrines is liable to supply a dangerously strong 
 inducement to the conscious or semi-conscious perpetuation of 
 exploded errors, which, without this support, would gradually 
 disappear : hence it should be the duty of Government to 
 watch such bequests with special care, and to intervene 
 when necessary, to obviate the danger just indicated, by 
 modifying the rules under which ancient bequests are 
 administered. 1 
 
 1 This principle is of course applicable to other endowments besides those 
 devoted to religious teaching. 
 
 Note. It may be noticed that some interference in the employment of 
 funds for religious purposes may be forced on Government by disputes within 
 the bodies enjoying the benefit of the funds : it may have to determine 
 which of the disputing sections has the real claim to endowments. I observe, 
 however, that the Supreme Court of Illinois decided, in an action for wrong- 
 ful dismissal, that the " free exercise of religious profession " which the 
 constitution of Illinois guarantees is incompatible with the claims of civil 
 courts to decide whether the judgments of the judicial authorities of the 
 Church are in accordance with the laws or Canons of the Church.
 
 CHAPTEE XXIX 
 
 PARTIES AND PARTY GOVERNMENT 
 
 1. BY parties I mean political combinations, designed for 
 indefinite duration, and having distinctive aims and opinions 
 on some or all of the leading political questions of con- 
 troversy in the state in which they are formed. It is 
 obvious that such combinations may be connected with illegal 
 acts in various ways, just like the more temporary associa- 
 tions for special political objects discussed in the last 
 chapter, and may require similar repression. Such repres- 
 sion, however, is likely to be difficult and dangerous when 
 it has to be applied to a large and important political party ; 
 and party strife that reaches this degree of violence must be 
 regarded as an inflammatory disease of the body politic, for 
 the cure of which no general rules can be laid down, 
 except that every effort should be made to subdue it by the 
 removal of real grievances, in order to avoid or shorten the 
 application of the repressive method. But political parties 
 have for the student of politics an interest of a different 
 kind, from their tendency, when perfectly legal and orderly 
 in their aims and methods, to modify importantly the normal 
 working of representative institutions ; and it is from this 
 point of view that I propose to consider them in the present 
 chapter. 
 
 It is not easy to say how far the nature and extent of 
 the influence of parties on representative government could 
 have been predicted from a general knowledge of human 
 nature. Certainly nothing like what has actually taken 
 place, in England and the United States, in which the 
 
 589
 
 590 ELEMENTS OF POLITICS CHAP. 
 
 modern 1 representative system has had the longest trial, 
 seems to have been foreseen by earlier writers who have 
 discussed this system. The authors of the Federalist (1788), 
 throughout their careful and minute examination of the 
 probable working of the newly-framed constitution of the 
 United States, never seem to have imagined that the system 
 they were considering would have a predominant tendency 
 to group the citizens into two main parties, competing for 
 victory at all elections : the operation of party is only dis- 
 cussed under the name of " faction " as an evil against which 
 precautions have to be taken ; and Madison, when expounding 
 the advantages offered by the new constitution, in reducing 
 the danger of faction, lays stress on the " greater security 
 afforded by the probable greater variety of parties against 
 the event of any one party being able to outnumber and 
 oppress the rest." 2 Even Story, writing in 1833, seems to 
 have no foresight of the party-system by which the consti- 
 tution of the United States was destined to be worked 
 during the next half-century ; for instance, he quotes with 
 emphatic approval, and without any qualifying comment, a 
 summary of the President's duties, in which he is simply 
 directed to " disregard the bias of party " in the appoint- 
 ment of subordinate officials. 3 And even J. S. Mill, writing 
 in 1860, hardly seems to contemplate a dual organisation of 
 parties as a normal feature of representative institutions. 4 
 
 Parties of some sort, indeed, based on agreement in prin- 
 ciple or community of interest, or perhaps most frequently 
 on a combination of the two, are generally recognised by 
 English writers, of the eighteenth as well as the nineteenth 
 century, as an inevitable incident in popular government ; 
 and, since Burke, the prevailing tendency of our writers has 
 
 1 Representative assemblies of a certain kind, with various degrees of 
 power, have had a nearly continuous existence from the later Middle Ages 
 downward, in several European countries. But their nature and conditions, 
 until very recent times, have diverged so widely from the institutions which 
 we have been led to consider, that their experience throws ibut little light on 
 our present question. 2 Federalist, No. X. 
 
 3 See Constitution of the United States, Book III. ch. xxxvii. 1527. 
 
 4 See his Representative Government.
 
 XXix PARTIES AND PARTY GOVERNMENT 591 
 
 been to view their operation with tolerant acquiescence, if 
 not positive approval. In order that a proposed scheme of 
 governmental policy, or any important change in the struc- 
 ture of government desired by a number of persons, may 
 have a fair chance of being carried out, it is obviously ex- 
 pedient that those who are in favour of it should combine 
 for the purpose of compromising their minor differences, and 
 determining jointly the line of action most favourable to the 
 attainment of their common end. The probable number, 
 however, of such combinations, and the range of their objects, 
 could hardly be determined by any general reasoning : but 
 apart from the effect of periodical elections, of which I shall 
 presently speak the more natural grouping would seem to 
 be in associations aiming each at a particular set of closely 
 connected political results ; some differing but little in the 
 range of their aims from the leagues discussed in the last 
 chapter, others having a wider scope, but still not concerned 
 with the whole business of government. For instance, 
 instead of an " anti-corn-law " league, which would naturally 
 cease when protective duties on corn were abolished, we 
 might expect to have a free-trade league, opposed to all 
 kinds of protection to native industry : then, taking a wider 
 sweep, the persons opposed to interference with trade might 
 naturally join in a more comprehensive union for the main- 
 tenance of " natural liberty," and the reduction of legislative 
 interference in all departments to the individualistic mini- 
 mum. In opposition to this there would naturally be 
 formed a socialistic or semi-socialistic party, who would aim 
 at reducing by the action of Government the inequalities and 
 other evils resulting, from " unrestricted competition " in any 
 department of industry. But, wide as the scope of these 
 combinations would be, there seems to be no reason why the 
 members of either should necessarily act together on any 
 question of change in the structure of Government. There 
 might, therefore, naturally be a third party, distinct from 
 either of the above mentioned, formed to promote measures 
 for increasing the part taken by the people at large in 
 government, such as short Parliaments, the Keferendum,
 
 592 
 
 ELEMENTS OF POLITICS 
 
 abolition of the Second Chamber, payment of members, etc. ; 
 and another party, again, with the opposite aim of increasing 
 the political power of the highly educated class, by dis- 
 franchising illiterate voters, giving more than one vote to 
 educated persons, etc. A fifth party, again, might be formed 
 to promote a pacific and guarded foreign policy ; and a sixth 
 in favour of bold enterprise and aggrandisement, with a 
 corresponding increase of taxation for military expenditure. 
 There seems to be no clear general reason why any one 
 of these parties should coincide with any other ; persons 
 convinced of the expediency of extended popular control 
 over government might easily differ on questions relating 
 to the limits of governmental interference, or as to the 
 proper character of the foreign policy of the State. 
 
 The division into parties that I have just sketched is 
 supposed to be based on disinterested differences in political 
 judgment. To complete the sketch we have as I said at 
 the outset to consider the influences that the divergent 
 interests of different classes are likely to exercise in 
 determining such combinations. But, apart from the 
 necessity of uniting for electoral purposes, I conceive that 
 this influence would naturally tend to complicate rather 
 than to simplify the formation of party groups ; since the 
 divisions corresponding to difference of interests would vary 
 very much according to the nature of the legislative or 
 administrative measure that was under discussion ; while, 
 again, persons of the same class would often disagree pro- 
 foundly as to the best means of promoting their sectional 
 interests, from the same causes that lead to disinterested 
 disagreements as to what is best for the community as a 
 whole. It may be urged, however, that the most obvious 
 division of interests is that between the poor and the rich ; 
 and that this must tend to coincide broadly with the division 
 between the advocates of government by the people, and the 
 advocates of government by a highly educated minority } 
 since the latter will tend to be largely drawn from the richer 
 classes, who enjoy superior educational advantages, and will 
 at any rate usually belong to these classes, from the
 
 xxix PARTIES AND PARTY GOVERNMENT 593 
 
 higher remuneration that their skill commands. And I 
 admit that on some momentous questions such as the 
 distribution of taxation the political interest of the 
 mass of the poor is prima facie opposed to that of the 
 rich. Still there are many subjects of fundamental import- 
 ance, on which the natural line of separation of parties 
 according to interests would seem to be quite different. 
 For instance, if protection is demanded for certain native 
 industries, of which the products are consumed by the poor, 
 the interest of the labourers employed in these industries 
 would be opposed to that of the poor consumers outside them. 
 Again, if the issue of war or peace should be raised, there is 
 no reason why the poor should agree any more than the 
 rich on the difficult question, whether the prospect of suffer- 
 ing and loss from war is a less or greater evil than the 
 dangers incurred by submitting tamely to foreign encroach- 
 ments. Similarly, if the question should be as to the extent 
 of the provision required for warlike purposes, the line of 
 separation is likely to be determined by differences of political 
 judgment rather than by manifest conflict of interests ; 
 since it is no more the interest of the poor as a body than 
 of the rich as a body that the provision for war should be 
 inadequate, and no more the interest of the rich than of the 
 poor thab it should be excessive. 
 
 2. On the whole, then, I should conclude that the for- 
 mation of parties in a modern state which would naturally 
 result from the grouping of persons either according to 
 similarity of convictions or community of interests, or both 
 combined, would probably be of a complicated and shifting 
 kind ; and that it would almost certainly have a multiple 
 and not a dual character. And if we put out of sight the 
 influence of elections especially elections of the head or 
 heads of the executive there appears to be no sufficient 
 reason why a group of persons united by common principles, 
 or common interests, should enter into permanent union, for 
 political purposes, with another group formed on an entirely 
 different basis. No doubt such a union might sometimes 
 be the easiest way of forming a majority for carrying the 
 
 2Q
 
 594 ELEMENTS OF POLITICS CHAP. 
 
 measures which each group desires; but it would be an 
 obviously artificial means to this end : since the success of 
 any one party such as we have been considering, in obtain- 
 ing a majority in favour of its measures by the more natural 
 and legitimate methods of reasoning and persuasion, would 
 not interfere materially with the efforts of another party to 
 carry measures relating to a different subject. 
 
 The case is no doubt altered when we take elections into 
 account ; at least under a system in which no provision, or 
 no adequate provision, is made for the representation of 
 minorities ; since in any such election, if the vacancies are 
 filled up by the candidates of one party, the candidates of 
 any other party can only be elected accidentally, unless 
 the parties have formed an alliance, and agreed upon 
 a common list of candidates. Hence arises an important 
 influence, tending to reduce the number of competing 
 electoral combinations to two. It seems not unlikely, how- 
 ever, that such combinations would be very transient, and 
 would vary from place to place, if the sole concern of the 
 electors were to choose representatives for the purpose of 
 legislation : the decisive impulse towards a permanently dual 
 organisation of parties appears to be given by entrusting to 
 the constituencies, along with the election of members of a 
 central legislative assembly, the practical choice of the 
 chief or leading members of the central executive. This 
 choice, as we have seen, takes place in strikingly different 
 forms in the English and American systems respectively ; 
 still, its effect both at the quadrennial presidential elections 
 in the United States, and at ordinary general elections in 
 England, is to concentrate the interest of the whole country 
 on an electoral struggle, in which, if any political com- 
 bination does not form part of the victorious majority, it 
 has failed so far as this contest is concerned. This gives 
 a powerful and continually operating inducement to the 
 absorption of minor parties in one or other of two great 
 combinations ; the force of which is further increased in 
 the United States by the " Spoils system " the practice of 
 making extensive changes in the minor posts of the executive
 
 xxix PARTIES AND PARTY GOVERNMENT 595 
 
 to reward members of the winning party and by the con- 
 trol over legislation which the veto gives to the President ; 
 while in England, again, it is importantly increased by the 
 practical control over legislation which the Cabinet has 
 come to possess. 
 
 In this way the organs of representative government in 
 both countries equally in spite of the great differences 
 in their political systems 1 have come to be normally the 
 organs of one or other of two permanently opposed and com- 
 peting parties ; and, correspondingly, the hostile criticism 
 of governmental measures, carried on in the press and 
 public meetings, is mainly directed and largely supplied by 
 the systematic effort of a defeated party to discredit and 
 supplant its dominant rival. It is true that this tendency 
 to duality in the composition of parties does not altogether 
 overcome the tendency to plurality ; each of the two oppos- 
 ing parties is often composed of parts which very imperfectly 
 cohere, and from time to time a party breaks up and new 
 combinations are formed ; also, independent parties of 
 minor importance may exist side by side with the two 
 chief divisions ; but in the main the tendency to duality 
 predominates. 
 
 3. I shall presently consider how far it is possible, by 
 any constitutional arrangement, to overcome this tendency 
 to a dual division into parties ; but before considering this, 
 it will be well to examine carefully its drawbacks and 
 advantages. 
 
 The advantage that would probably first suggest itself 
 to an Englishman, or to a member of any European com- 
 munity that has imitated England in organising repre- 
 sentative government, is the gain in stability obtained from 
 the dual division. Where there is a multiplicity of parties, 
 
 1 Especially the very important difference that in England the Supreme 
 Executive Cabinet must always except for rare and very brief intervals 
 belong to the same party as the majority in the House of Commons ; 
 whereas in the United States the party to which the President belongs 
 might easily be in a minority in the House of Representatives during half 
 the period of the President's tenure of office, and in a minority in the Senate 
 during the whole period.
 
 596 ELEMENTS OF POLITICS CHAP. 
 
 the chances are that no single party will have a majority in 
 the legislature ; hence any majority that may be temporarily 
 formed from a combination of parties is likely to lack in- 
 ternal coherence ; its elements and similarly the elements 
 of the opposing minority will be easily separated, and 
 easily made to recombine into a differently composed 
 majority and minority. In this way the instability, which 
 we have been led to regard as a probable defect of Parlia- 
 mentary government, is likely to be on the average much 
 more marked if there is not a firm dual organisation of 
 parties. 
 
 This advantage of the dual system is mainly important 
 when the executive is dismissible at any time by a Parlia- 
 mentary majority. The next that I shall notice applies to a 
 great extent to almost any mode of organising representative 
 institutions. It consists in the more regular, systematic, 
 and sober criticism of governmental measures to which the 
 dual party system leads. The object of the " outs " as a 
 party being to get " in," it becomes the business of the leaders 
 to scrutinise the measures of the ministry continually and 
 closely, and bring to light all their weak points in order if 
 possible to overthrow the ministry, or, at least, to inflict on 
 it a loss of prestige. At the same time there are strong 
 inducements apart from patriotism to make the leaders 
 of an opposition, who naturally look forward to becoming 
 ministers, abstain from attacking measures that are wisely 
 chosen and framed. For if they do not defeat the ministers 
 the blow they have tried to deliver is likely to recoil on 
 themselves ; while, if they succeed, and bring their party 
 into power, they may find themselves seriously hampered 
 in the management of affairs if circumstances should arise 
 in which a measure similar to that which they have at- 
 tacked may appear obviously expedient. In short, under 
 the dual party system, the leaders of the opposition tend to 
 criticise keenly, from desire to oust the holders of power, 
 and yet circumspectly, being aware of the responsibilities 
 and difficulties which success, bringing power, must entail. 
 
 A more doubtful argument sometimes urged for the dual
 
 XXix PARTIES AND PARTY GOVERNMENT 597 
 
 party system is that it is required to maintain a permanent 
 and comprehensive interest in political struggles. With- 
 out this system, it is said, the centres of political influence 
 would be chiefly leaders or organisers of more or less narrow 
 combinations on behalf of avowedly sectional interests, or 
 of more or less fanatical combinations to promote certain 
 measures of a violent character. From such parties, it is said, 
 the quiet steady-going citizens who form the best element 
 of any electorate would mostly stand aloof, and con- 
 sequently they would take comparatively little interest in 
 the elections and gradually lose the habit of fulfilling their 
 constitutional duties. It is, I think, likely that this result 
 would happen to some extent ; for the dual party system 
 certainly tends to make party feeling more general, and 
 strong party feeling is, in average men, a more powerful 
 impulse to action than a mere sense of civic duty. But I 
 do not feel sure that serious loss would result to the com- 
 munity if such of the citizens as can only be induced to 
 perform their electoral duties by the tie of party should 
 withdraw altogether from political functions. 
 
 For it is, on the other hand, a fundamental objection to 
 the dual party system that it tends to make party-spirit, if 
 perhaps less narrow and fanatical, at any rate more compre- 
 hensive and absorbing. Where parties are numerous and 
 limited in their scope, there are likely to be many cross- 
 divisions, so that persons who are opposed on some ques- 
 tions will be allied on others, and there is less probability 
 that they will regard all questions habitually and system- 
 atically from a party point of view. Whereas, where the 
 system of two permanently opposed parties is firmly estab- 
 lished, the sentiment of " loyalty to party " becomes almost 
 as tenacious and exacting as patriotism, and sometimes 
 almost equally independent of intellectual convictions ; so 
 that a man remains attached to his party from old habit 
 and sentiment, or from fear of being called a renegade, when 
 he can no longer even imagine that he holds its " funda- 
 mental principles." A sentiment and habit are thus semi- 
 unconsciously substituted in many cases for intellectual
 
 59 8 ELEMENTS OF POLITICS CHAP. 
 
 agreement as the bond of party-union, the fundamental 
 principles of either party become obscure ; a result which 
 each party keenly perceives in the case of the other, though 
 remaining partially unconscious of it in its own case. 
 
 One consequence of this is, that while the two-party 
 system diminishes in some respects the defects of parlia- 
 mentary government, it intensifies them in other respects. 
 The attack on governmental measures by the party in 
 opposition tends, as I have said, to be less rash and fanatical 
 than it might otherwise be ; but, on the other hand, it tends 
 to be more systematically factious and disingenuous. Good 
 legislation has to be avoided by the party in power, not 
 only when it is such as would be naturally unpopular, but 
 when it can be successfully discredited by partisan ingenu- 
 ity ; and the same cause is liable to hamper the operation, 
 or impair the effect, of necessary or highly expedient 
 measures of administration. 
 
 Again, the tendency before noted in parliamentary 
 government of the English type, to entrust executive power 
 to parliamentary leaders who are not specially qualified for 
 their administrative functions, is aggravated by the per- 
 manent division into two competing parties. Even if there 
 were no such division, a parliamentary executive would be 
 always liable to include orators and parliamentary tacticians 
 devoid of administrative skill ; but it might be possible to 
 retain in office an administrator of conspicuous merit, even 
 though his political opinions, in matters outside his depart- 
 ment, were opposed to those of the majority for the time 
 being ; and this becomes impossible when the dual division 
 is thoroughly established. 
 
 Further, the dual system seems to have a dangerous 
 tendency to degrade the profession of politics : partly 
 from the inevitable insincerity of the relation of a party 
 leader to the members of his own party, partly from 
 the insincerity of his relation to the party opposed to him. 
 To keep up the vigour and 2eal of his own side, he has to 
 maintain the fiction that under the heterogeneous medley of 
 opinions and sectional interests represented by either the
 
 xxix PARTIES AND PARTY GOVERNMENT 599 
 
 " ins " or the " outs " at any particular time there is a funda- 
 mental underlying agreement in sound political principles ; 
 and he has to attribute to the other side a similar agree- 
 ment in unsound doctrines. Thus the best political talent 
 and energy of the country acquires a fatal bias in the 
 direction of insincere advocacy; indeed the old objection 
 against forensic advocacy as a means of obtaining right 
 judicial conclusions that one section of the experts em- 
 ployed are professionally required to make the worse seem 
 the better reason applies with much more real force here 
 than in the case of the law-courts. For in the case of the 
 forensic advocate this attitude is frankly avowed and re- 
 cognised by all concerned : every plain man knows that a 
 lawyer in court is exempt from the ordinary rule that binds 
 an honest man only to use arguments which he believes to 
 be sound; and that it is the duty of every member of a jury 
 to consider only the value of an advocate's arguments, and 
 disregard, as far as possible, the air of conviction with 
 which they are uttered. The political advocate or party 
 leader tends to acquire a similar professional habit of 
 using bad arguments with an air of conviction where he 
 cannot get good ones, or when bad ones are more likely to 
 be popularly effective ; but, unlike the forensic advocate, he 
 is understood, in so doing, to imply his personal belief in 
 the validity of his arguments and the truth of the conclu- 
 sions to which he desires to lead up. And the case is made 
 worse by the fact that political advocacy is not controlled 
 by expert and responsible judges, whose business it is to 
 sift out and scatter to the winds whatever chaff the pleader 
 may mingle with such grains of sound argument as his brief 
 affords ; the position of the political advocate is like what 
 that of a forensic advocate would be, if it was his business 
 to address a jury not presided over by a judge, and largely 
 composed of persons who only heard the pleadings on the 
 other side in an imperfect and partial way. 1 
 
 1 The demoralising effect of politics under the party system seems to me 
 an argument of weight for keeping the business of statesmanship as far as 
 possible unremuu crated by money ; the work itself is liable to be so degrad-
 
 6oo ELEMENTS OF POLITICS CHAP. 
 
 What has just been said applies primarily to the lead- 
 ing members of a party who undertake the task of advo- 
 cacy. But the artificiality of combination which the dual 
 system involves has to some extent a demoralising effect on 
 other members of the legislature ; they acquire a habit 
 either of voting frankly without conviction at the summons 
 of the " whip," or of feigning convictions which they do not 
 really hold in order to justify their votes. 
 
 And the same cause impairs the security for good legis- 
 lation, apparently furnished by the fact that a measure can 
 only be passed if it has the approval of a majority of the 
 legislators ; since it increases the danger that measures may 
 be passed which are only desired and really approved by a 
 minority it may even be not a large minority if it be 
 sufficiently fanatical or selfish ; such measures being ac- 
 quiesced in by the rest, under the guidance of their leaders, 
 in order to maintain the party majority. 
 
 4. Of the gravity of these disadvantages it is difficult 
 to form a general estimate, as it depends largely on the 
 condition of political morality, which is influenced by many 
 causes more or less independent of the form of government : 
 but we may reasonably regard the disadvantages as sufficiently 
 grave to justify a serious consideration of the means of remov- 
 ing or mitigating them. The available remedies are partly 
 political, partly moral : the former will naturally vary much 
 according to the precise form of government adopted. If the 
 Supreme Executive is practically dismissible at any time by 
 a Parliamentary majority even with the possibility of 
 appealing to the country the danger of transient and 
 shifting Parliamentary majorities is so great and obvious, 
 that a nation in which the two-party system is firmly 
 established is hardly likely to abandon it. But the case is 
 different with other forms of Kepresentative Government. 
 For instance, where there is a supreme executive appointed 
 for a fixed period, without the power of dissolving Parliament, 
 
 ing, when carried on under the conditions above described, that its dignity 
 can hardly be maintained unless it is performed gratuitously : if the business 
 of keeping a party together and leading it on to victory becomes a trade, it 
 becomes a vile trade.
 
 xxix PARTIES AND PARTY GOVERNMENT 601 
 
 there is less manifest need of this system than where the 
 executive holds office on the English tenure, and less tend- 
 ency, ceteris paribus, to promote its development : since, in 
 the former case, the party struggle in parliament is not kept 
 always active as it is in the latter case by the conscious- 
 ness that the Cabinet or the Parliament may come to an 
 end at any moment. It is true that the example of the 
 United States might be quoted on the other side, since there 
 the fixed tenure of the Presidency has not interfered with 
 the fullest development of dual party government that the 
 modern world has seen. Here, however, I conceive that (1) 
 the election of the President by the people at large, and (2) 
 the " spoils " system, have operated powerfully to foster this 
 development : if there were a Supreme Executive elected by 
 the legislature, 1 with subordinate officials holding office 
 independently of party ties, I think it probable that the 
 tendency to a dual division of parties and generally the in- 
 fluence of party on government would be materially reduced. 
 Assuming that a Parliamentary Executive is retained, the 
 bad effects of two-party government might still be mitigated 
 in various ways. Substantial portions of legislative and 
 administrative work might be withdrawn from the control 
 of the party system, under the influence of public opinion, 
 aided by minor changes in parliamentary rules and in the 
 customary tenure of executive offices. Firstly, as I have 
 before suggested, 2 on certain important questions, not closely 
 
 1 It may be said that the choice of a President by the legislators would 
 become practically the same thing as a choice by the citizens at large, as the 
 latter would elect representatives pledged to elect a certain President. I do 
 not think that this result would necessarily occur : but it would no doubt be 
 not unlikely to occur, especially if the two-party system were already fully 
 developed before this mode of electing the head of the Executive was intro- 
 duced. In any case I think that the result would probably be prevented 
 either (a) by entrusting Supreme Executive power to a Council instead of to 
 an individual, or (b) by placing the time for electing the Executive in the 
 middle of the Parliamentary period. There would, however, be drawbacks to 
 either expedient ; as the former would lose the advantage of a monarchical 
 organisation of the Executive, and the latter would somewhat diminish the 
 chance of there being harmony at any given time between the legislature and 
 the executive. 
 
 - See p. 458.
 
 602 ELEMENTS OF POLITICS CHAP. 
 
 connected with the business of the executive departments, 
 the preparation of legislation might be entrusted to parlia- 
 mentary committees other than the executive cabinet : and 
 the natural tendency to different lines of divisions on 
 different subjects might thus be allowed fair play. 
 
 Secondly, certain headships of departments, in which a 
 peculiar need of knowledge, trained skill, and special experi- 
 ence was generally recognised, might be filled by persons 
 not expected normally to retire with their colleagues, when 
 the parliamentary majority supporting the government of 
 which they were members was turned into a minority ; but 
 only expected to retire when the questions on which issue 
 was joined between the parties related to the administration 
 of their special departments. 
 
 Again, it would seem possible, by certain changes in the 
 customary relation between the Cabinet and Parliament, to 
 allow free play to the natural working of political convic- 
 tions without increasing the instability of government. 
 Thus, it might be the established custom for ministers not 
 to resign office because the legislative measures proposed by 
 them were defeated, unless the need of these measures was 
 regarded by them as so urgent that they could not con- 
 scientiously carry on the administration of public affairs 
 without them, but only to resign when a formal vote of 
 want of confidence was carried against them in the House 
 of Representatives. This change would at once promote, and 
 be facilitated by, an increased separation of the work of 
 legislation from that of administration. 
 
 Again, the introduction of the " Referendum " even to 
 the limited extent suggested in Chapter XXVII. would at 
 any rate reduce the danger that a minority, concentrating 
 its energies on narrow political aims, may force through 
 legislation not really approved by a majority of the assembly 
 that adopts it. 
 
 Finally, the operation of the party -system might be 
 checked and controlled more effectually than it now is in 
 England and the United States by a change in current 
 morality, which does not seem to be beyond the limits of
 
 xxix PARTIES AND PARTY GOVERNMENT 603 
 
 possibility. It might be regarded as the duty of educated 
 persons generally to aim at a judicial frame of mind on 
 questions of current politics, whether they are inside parties 
 or outside. If it is the business of the professional politician 
 to prove his own side always in the right, it should be the 
 point of honour of the " arm-chair " politician, if he belongs 
 to a party, to make plain when and why he thinks his party 
 in the wrong. And probably the country would gain from 
 an increase in the number of persons taking a serious interest 
 in politics who keep out of party ties altogether.
 
 CHAPTEE XXX 
 
 CLASSIFICATION OF GOVERNMENTS 
 
 1. THE reader who has accompanied me so far may have 
 observed perhaps with surprise that I have made little 
 use of the current terms " democracy " and " aristocracy " ; 
 and though I have spoken of the functions of the " monarch," 
 the functionary so named has been conceived as a part of a 
 government which can only be called " monarchical " in a 
 wide sense. I adopted this course, because it seemed to me 
 that the current classification of forms of governments was 
 liable to involve serious ambiguities, and that it would be 
 more convenient to remove those ambiguities at the present 
 stage of our discussion ; and, in removing them, to give a 
 final characterisation of the type or types of government 
 which the reasonings contained in Chaps. XX.-XXVI. have 
 gradually led me to delineate. 1 
 
 Let us begin by examining the origin of the current 
 classification. We are at once reminded by the derivation 
 of the names of the main classes monarchy, aristocracy, 
 oligarchy, democracy that it was originally the result of 
 reflection on the varieties of government exhibited in the 
 history of the Greek city-states ; and it will, accordingly, 
 be instructive to note the form which the classification 
 assumed in the remarkable treatise in which Aristotle 
 
 1 It may be thought, perhaps, that in the following discussion I have 
 not sufficiently concentrated attention on the question "Where supreme 
 political power or sovereignty resides in the modern forms of govern- 
 ment that come under our consideration." The reason why I have reserved 
 this question will be explained in the next chapter. 
 
 604
 
 CHAP, xxx CLASSIFICATION OF GOVERNMENTS 605 
 
 gathered together the fruits of Greek political experience. 
 Aristotle recognises l six leading types of government, three 
 good or normal, and three bad or perverted. The names 
 of the three bad types, which I take first, as they were 
 unhappily those that experience chiefly presented, are 
 Democracy, Oligarchy, and the irregular and lawless 
 despotic Monarchy which the Greeks called " Tyrannis " ; 
 the three good types are called by Aristotle Constitutional 
 Government, Aristocracy, and Kingship. In the three bad 
 types the ruling element whether one, few, or many 
 governs unrestrainedly in its own selfish interest ; in the 
 good types it aims at the good of the whole community. 
 Of the three good types, the simplest is true Kingship, 
 the rule of a single man of pre-eminent wisdom and good- 
 ness, the " hero as king," 2 if such a unique being can be 
 found ; the emergence of such royal heroes in primitive 
 times was affirmed by tradition in Greece as in other 
 countries, but it is evident that even an approximate 
 realisation of this type is not regarded by Aristotle as 
 within the range of practical politics. A less purely ideal 
 and more vaguely defined type is Aristocracy, in the sense 
 of the rule of the Best, being more than one. The number 
 of these in a state would vary with social conditions; but 
 it was at any rate clear to Aristotle that the persons well 
 qualified for government could only be a minority in any 
 political society, owing to the need of leisure for the attain- 
 ment of the required qualification. 3 
 
 But the drift towards democracy in the city-states of 
 Aristotle's time was so strong that he could not hope for any 
 widespread realisation of anything like his ideal Aristocracy ; 4 
 
 1 The general idea of this classification is substantially derived from 
 Plato (Politicus) ; but it is sufficient here to take it in the Aristotelian 
 form. 2 Carlyle. 
 
 3 It is to be observed that in Aristotle's ideal State important govern- 
 mental functions are allotted to all fully qualified citizens who have 
 attained a certain age ; but these fully qualified citizens are all persons of 
 leisure, living on the produce of lands tilled by serf-cultivators. I think, 
 however, that the line drawn by Aristotle between Aristocracy and Constitu- 
 tional Government is somewhat obscure and varying. 
 
 4 The term "aristocracy " is applied by Aristotle in two ways : (1) strictly
 
 606 ELEMENTS OF POLITICS CHAP. 
 
 accordingly, the form of government which he recommends 
 as a more practical ideal for general imitation is a kind of 
 middle form between oligarchy and democracy but inclin- 
 ing to democracy which he calls Constitutional Govern- 
 ment. 1 In this a majority of the free citizens the poorest 
 class being excluded would possess important governmental 
 functions, especially the right of electing their magistrates, 
 and calling them to account, and a sort of balance would 
 be maintained between rich and poor by the preponderant 
 political influence of men of moderate means. But even 
 this type was but rarely realised within the range of 
 Aristotle's experience ; the predominant characteristic of the 
 later political development of free Greece was a struggle 
 between rich and poor, in which the winning party set up 
 either selfish and oppressive oligarchy, or selfish and oppres- 
 sive democracy ; unless, as sometimes happened, an ambi- 
 tious individual took advantage of disorder to establish 
 himself as a Tyrannus. If we wish to arrange these bad 
 forms of government in the order of demerit, we have to 
 invert the numerical order ; since of all bad governments 
 the rule of a single individual in his own interest is the 
 worst, and the oppressive rule of the few is worse than the 
 oppressive rule of the many. 
 
 It should be observed that Aristotle also uses the terms 
 " aristocratic," " oligarchic," and " democratic " to denote 
 characteristics which the same polity may possess in different 
 elements or features of its constitution ; indeed, what he calls 
 constitutional government is conceived by him as a kind of 
 mixture of oligarchy and democracy, which may also have 
 in some degree an aristocratic character, so far as the con- 
 stitutional arrangements tend to allot governmental functions 
 to persons of merit. 
 
 Turning now to the modern use of the terms, I note first 
 
 to his ideal State, and (2) more loosely to actual States in which the allot- 
 ment of political functions is partly determined by merit. 
 
 1 We may note as a sign of the drift towards democracy of which I have 
 spoken that Aristotle uses the general term "constitution " or " constitutional 
 government " (TroXrre/a) to mean constitutional democracy.
 
 xxx CLASSIFICATION OF GOVERNMENTS 607 
 
 that the notions of " monarchy," and "kingship," 1 " tyranny," 
 and " despotism," are materially changed. The modern term 
 " monarchy " is largely used to denote governments in which 
 only a share of power is left to the single individual called 
 the " monarch." 2 Again, if the power of the monarch is not 
 constitutionally limited we call it " despotism " ; but as this 
 term does not necessarily suggest a power irregular and 
 lawless in its origin, it does not correspond to the Greek 
 " Tyrannis." On the other hand, this latter term is not 
 accurately expressed by the modern " tyranny," because a 
 modern despot would not be called a tyrant unless his rule 
 were harshly oppressive, whereas a Greek Tyrannus might 
 find his interests best subserved by mild and benevolent 
 government : moreover, we consider that oligarchs and 
 democrats can exercise " tyranny " as well as monarchs. 
 Indeed, in a modern discussion we should not mention 
 tyranny except as an evil to be guarded against : nor, in 
 constructing a suitable government for a modern State, 
 have we had occasion to consider despotism. 3 We have, 
 however, noted important reasons for allotting extensive 
 powers to a single individual in the organisations of modern 
 government : not because a modern thinker can, any more 
 than Aristotle, hope to obtain by any practicable mode of 
 appointment a man unique in wisdom and virtue to fill the 
 place of king or president ; but rather on account of the 
 greater unity and consistency in design attained by leaving 
 the management of governmental work to a single man, 
 and the greater vigour in execution attained by leaving 
 him unfettered control and undivided responsibility. How 
 far and under what circumstances the executive government 
 should be organised on what may in this wide sense be 
 called a " monarchical " plan, has been already to some 
 extent considered: and it will be convenient to defer 
 further discussion of it till we have examined the modern 
 conceptions of oligarchy, aristocracy, and democracy. 
 
 1 Aristotle's " Monarchy " includes both Tyrannis and true Kingship. 
 
 2 Aristotle notes a similar use : but he pays little attention to it. 
 
 8 See, however, p. 621.
 
 608 ELEMENTS OF POLITICS CHAP. 
 
 In the whole nomenclature the term which has least 
 altered its signification in its modern use is " oligarchy " : for 
 we, like Aristotle, commonly denote by this the government 
 of a wealthy minority in their own interest. But the 
 Aristotelian distinction between " oligarchy " and " aristo- 
 cracy " has been largely obliterated, so that the two terms 
 are often used almost as convertible : still the distinction so 
 far lingers that " oligarchical " has generally a bad signifi- 
 cation, while " aristocratic " is felt to be in itself at least a 
 neutral term, even if the person using it disapproves of 
 aristocracy. Moreover, the " aristocratic " element of a 
 modern community is vaguely understood to be not merely 
 rich, but to have acquired, on the average, through hereditary 
 wealth, leisure, and social position, a cultivation of mind 
 above that of the " masses " and also certain valuable tradi- 
 tions of political experience : so that its claim to a share in 
 government disproportionate to its numbers is based on a 
 belief in its superior intellectual qualifications. It therefore 
 seems to me possible, without doing too much violence to 
 current usage, to give the term a signification akin to the 
 Aristotelian ; accordingly I shall mean by " aristocracy " the 
 government of persons specially qualified by abilities, train- 
 ing, and experience for the work of government. 
 
 I have said " specially qualified," and not " best qualified," 
 because it is a widespread opinion in modern times that the 
 mass of adults or male adults in any civilised state is 
 better qualified for the most important political decisions, 
 than any small minority of persons, however much they 
 may be chosen with a view to special qualifications. For, in 
 passing from Aristotelian to modern thought, the associations 
 and sentiments which the word " democracy " carries with it 
 have become very different : the term represents for us not 
 merely a depressingly prevalent political fact, but a widely 
 and enthusiastically accepted political ideal. The drift to- 
 wards democracy which we note in the later history of free 
 Greece does not appear to have had either as cause or effect 
 a corresponding movement in philosophic thought : but the 
 corresponding drift in modern times is even more marked in
 
 xxx CLASSIFICATION OF GOVERNMENTS 609 
 
 the history of political ideas than it is in the history of 
 political facts. But this tendency to idealise democracy is 
 liable to involve some confusion of thought, which I will 
 now attempt to remove. 
 
 2. Firstly, persons who adopt a democratic ideal some- 
 times put forward as a principle of democracy a proposition 
 which is indistinguishable from what I have taken as the 
 principle of good government : viz. that all laws and political 
 institutions should be framed with a view to the welfare of 
 the people at large, so that no privileges should be given to 
 any particular individual or class except on grounds of public 
 utility. I conceive, however, that this principle not only 
 might but would be universally conceded by the modern 
 advocates of every form of civilised government : l so that 
 to treat it as a characteristic principle of democracy intro- 
 duces fundamental confusion. There is more to be said for 
 distinguishing as democratic the principle that in estimat- 
 ing public welfare, conceived as " general happiness " of the 
 members of the community, " everybody is to count for one 
 and nobody for more than one." ^ So far, indeed, as this 
 merely means that the happiness of any one member of 
 society should be no more the concern of the legislator than 
 the equal happiness of any other member, it is obviously 
 implied in the acceptance of " greatest general happiness " 
 as the ultimate end : but if it is meant that equality in 
 the distribution of happiness is to be sought even at the 
 cost of diminishing the total amount of happiness attained, 
 the maxim is certainly different from the general utilitarian 
 principle which I have taken as fundamental ; 3 while yet 
 its practical adoption may not improbably follow from giving 
 
 1 I here overlook, for brevity, the possible divergence between the welfare 
 of any one political society and the welfare of humanity at large. 
 
 2 The quotation is from Bentham : I do not, however, think that Bentham 
 intended to deny (1) that one person may be more capable of happiness than 
 another ; or (2) that, if so, the former's happiness is more important than the 
 latter's as an element of general happiness. 
 
 3 To aim at equality in distribution of happiness may obviously be 
 incompatible with aiming at the greatest happiness on the whole, if the 
 happiness of one person can ever be increased by diminishing to a less extent 
 the happiness of another already less happy. 
 
 2R
 
 610 ELEMENTS OF POLITICS CHAP. 
 
 supreme control to the mass of adults. To this interpretation 
 of " democracy " I shall therefore return ; but I conceive that 
 according to the original derivation and prevalent use of 
 the word democracy ought to be interpreted as relating 
 primarily to the structure of government and not to the 
 mode in which its functions should be exercised. 
 
 How then are we to formulate the fundamental principle 
 of democracy in relation to the structure of government ? 
 There seem to be two competing principles, one or other of 
 which is more or less definitely assumed in current argu- 
 ments for democratic institutions. One of these, which 
 I myself accept, with important qualifications, 1 is " that 
 government should rest on the active consent of the 
 governed " ; the other is " that any one honest and self- 
 supporting citizen is, on the average, as well qualified as 
 another for the work of government." This latter proposi- 
 tion I in the main reject ; but I admit that, in one view of 
 the proof of the first proposition, the second is to some 
 extent implied, and that where democracy as defined by the 
 first proposition is fully developed, there is likely to be a 
 tendency to accept and act upon the second to some extent. 
 
 In order to examine the relation between the two proposi- 
 tions, it will be well to define the former more precisely. In 
 the first place, I mean by " active consent " something quite 
 different from the passive acquiescence, the absence of any 
 conscious desire to change the structure or modify the action 
 of government, which may exist under a pure monarchy or 
 oligarchy no less than under a democracy, wherever the 
 members of the community have lost or never acquired 
 the habit of regarding their government as a condition of 
 life which it is in their power to change. Even in such 
 a society the views and sentiments of the governed ordin- 
 arily impose certain limits on their government there 
 are certain things which the latter abstains from doing for 
 fear of exciting discontent and possible disaster : but this 
 effect is normally produced without any conscious exercise of 
 power. By " active consent," on the other hand, I imply that 
 
 1 For these qualifications see Chap. XX. 3-5.
 
 xxx CLASSIFICATION OF GOVERNMENTS 611 
 
 the citizens are conscious that they can legitimately alter the 
 structure or the action of their government if a sufficient 
 number of them choose to go through a certain process ; so 
 that if they make no effort to alter either, they exercise a 
 distinct act of choice : they may not like their govern- 
 ment or its ways, but they at least prefer not to take the 
 trouble of trying to change them. 
 
 Secondly, when we speak of the consent of " the governed," 
 we never mean to imply that all the human beings governed 
 are to have a voice in the matter. The most ardent demo- 
 crat does not wish to give votes to lunatics, criminals, or 
 infants ; and the modern movement towards democracy has, 
 in the main, stopped short of enfranchising women. This 
 latter exclusion, indeed, is hardly defensible except on 
 grounds that would justify limitations going much further ; 
 still, if we seek for a definition of democracy applicable to 
 modern facts, it seems necessary to limit the " governed " 
 whose consent is required to " sane law-abiding adult men" 
 For convenience, in the argument that follows, I shall use 
 the term " citizens " in this sense. 
 
 But further, in desiring the active consent " of the 
 citizens," I do not of course imply that all must be 
 agreed. In the various conflicts of desires and interests 
 that must be expected to arise continually within any 
 modern community, a democratic government cannot please 
 everybody any more than a monarchical or oligarchical 
 government ; and if the right of the government of the 
 community to determine the legal relations of the persons 
 inhabiting its territory which we have regarded as almost 
 indispensable for political order and wellbeing is to be 
 maintained, dissentient minorities must submit or depart. 
 At the same time, it must be admitted that the coercion 
 of a dissentient minority constitutes a special difficulty 
 for a government founded on the principle of consent, 
 especially if the dissentient minority includes a decided 
 majority within a considerable and continuous portion 
 of territory, and prefers separation to submission ; since 
 in this case the right of the majority of the whole
 
 612 ELEMENTS OF POLITICS CHAP. 
 
 community to coerce the local majority seems to depend 
 on an accidental union of territories. 1 Hence I conceive 
 that a democratic government will be reasonably averse to 
 such coercion, and will aim at giving the inhabitants of each 
 of the districts comprising it as much independence as the 
 interests of the whole community allow, and deciding doubt- 
 ful points in favour of local self-government. 
 
 However this may be, we may agree that the principle 
 of democracy requires the constitution of government, and 
 the general line of its action in reference to the common 
 interests of the whole, to have the active consent of at least 
 a majority of the citizens. And this majority must be 
 living, it would be paradoxical to interpret " consent " as 
 meaning the consent of the most overwhelming majority of 
 the dead. Hence, strictly taken, the principle excludes any 
 fundamental laws which it requires more than a bare 
 majority 2 to alter ; if such laws are established as (e.g.) in 
 the United States of North America and in other modern 
 constitutions the application of the principle of democracy 
 must be conceived to be limited in the interest of stability. 3 
 
 But, finally, the modern advocates of democracy do not 
 ordinarily contend that the consent of at least a majority 
 of the citizens should be necessary to the validity of every 
 governmental decision. JSTor is this merely because the people 
 has not time to consider all matters, and must therefore 
 leave some to the judgment of its servants, the Government, 
 just as a private individual with large affairs must do. For 
 
 1 See the concluding section of the next chapter. 
 
 2 It may even be doubted whether it is consistent with the principle 
 of democracy to require an absolute majority of the citizens instead of a 
 majority of voters for any change in the constitution. But I think that, 
 when adequate provision is made to enable all citizens to vote without serious 
 inconvenience, those who prefer not to vote for a proposal of change may be 
 said to give "active consent" to what is established. 
 
 3 And it is to be observed that this limitation may conceivably be so strin- 
 gent as practically to nullify the operation of the principle : i.e. the majority 
 required for changing the laws of the constitutional code may be so large 
 that change is practically precluded. The fths majority (of state legislatures 
 or conventions) required in the Constitution of the United States has nearly 
 had this effect.
 
 XXX CLASSIFICATION OF GOVERNMENTS 613 
 
 a private individual can interfere whenever he likes, and to 
 any extent he likes, in any department of his affairs ; any 
 decision he may communicate at any moment must be 
 obeyed by the servant or agent to whom it is communicated. 
 Now, as we have seen, it is sometimes implied in the utter- 
 ances of orators appealing to democratic sentiment that the 
 judgment of the majority should similarly always be obeyed 
 when it is declared. But the inconvenience of sudden 
 irruptions of uninstructed popular opinion into matters 
 which cannot be understood without prolonged and careful 
 study is so obvious and palpable, that, so far as I am aware, 
 no practical statesman, however demagogic, has ever proposed 
 such an arrangement in the most democratic of modern 
 States. At any rate we may take it as most commonly 
 admitted that the democratic principle must practically be 
 limited by confining the authoritative decisions of the people 
 at large to certain matters and certain periodically recur- 
 ring times ; and committing the great majority of govern- 
 mental decisions to bodies or individuals who must have the 
 power and, I may add, the duty of deciding according 
 to their own judgment without the active consent of the 
 majority and even against its wish. 
 
 3. The question then arises on what principle, in a 
 democracy, the particular persons should be selected to 
 whom this large part of the work of government which 
 cannot advantageously be undertaken by the people at 
 large is to be entrusted. 
 
 Here we have to consider the second definition that I 
 gave of the fundamental principle of democracy, " that one 
 honest and self-supporting citizen is as well qualified as 
 another for the work of government." This principle was 
 largely carried out in Athens, and elsewhere in the city- 
 states of ancient Greece, by the method of choosing officials 
 by lot, from among the citizens of unblemished civic 
 character. And though no similar attempt to realise this 
 principle is as yet discernible in modern arrangements for 
 democratic government, it seems necessary to consider it ; 
 since it may be plausibly argued that its rejection logically
 
 6i4 ELEMENTS OF POLITICS CHAP. 
 
 involves the rejection of the principle that government 
 must rest on popular consent. For, it may be urged, if we 
 require special qualifications for the minor decisions which 
 even democracy leaves to particular persons and bodies, we 
 ought to require them still more for the more important 
 decisions reserved to the people at large. 
 
 In considering this argument we have to take into 
 account partly intellectual, partly moral qualifications. As 
 regards the intellectual qualifications, the analogy of economic 
 relations may be adduced ; since in these it is generally 
 admitted that the judgment of the consumer must be com- 
 bined with that of the producer to obtain the right result ; 
 and in political matters the people as a whole seems to be 
 related to the experts who perform the detailed work of 
 governing, much as the consumers are to the producers in 
 other arts. The analogy is no doubt vague, as the relation 
 varies in different arts. E.g. in house-building the con- 
 sumer is better qualified to form a judgment on some of 
 the particular questions that arise than the producer is ; 
 knowing his own needs and habits he can generally decide 
 the number, size, and to some extent shape of rooms that he 
 wants better than the architect can, though he cannot so 
 well determine how they should be put together. In other 
 cases there are no particular matters in deciding which the 
 consumer has a similar advantage ; e.g. in medicine, though 
 the patient can tell whether a certain treatment makes him 
 uncomfortable, he cannot usually tell whether this dis- 
 comfort should prudently be endured, for the sake of the 
 ultimate gain to health that may be expected to accrue 
 from it. Still, as time goes on, if the patient grows steadily 
 worse, and especially if a promised amendment does not 
 realise itself, he will be thought right in taking other 
 medical advice. Accordingly, among those who accept 
 generally the principle of democracy, there are some who 
 consider the art of government more analogous to house- 
 building, and regard the people at large as best qualified 
 to determine the main lines of legislation and administration ; 
 while others consider it more analogous to medicine, and
 
 xxx CLASSIFICATION OF GOVERNMENTS 615 
 
 hold that the people should judge for itself from time to 
 time as to the general success of its government in pro- 
 moting the wellbeing of the country, but should not judge 
 for itself on particular questions. It is in harmony with 
 either view that the people's assenting judgment whether 
 directly or indirectly given should be regarded as indis- 
 pensable to the determination of the aggregate expenditure 
 for governmental purposes : as in the case of other arts no 
 one would recommend that the consumer in employing any 
 expert should give the latter carte Uanche to apply his 
 skill regardless of expense. 
 
 As regards moral qualifications, it would be going too far 
 to say that the " people " as politically defined has no 
 " sinister interests " opposed to the interests of the com- 
 munity as a whole. It is obvious that in the most demo- 
 cratic state there is a mass of non-voters whose interests 
 may be unduly postponed to those of the voters, that the 
 interests of posterity may be unduly sacrificed to those of 
 the present generation, and that a minority of the voters may 
 be unduly sacrificed to the majority. Still, though the 
 electorate as a body may possibly be swayed by narrow 
 and sectional interests, any particular section of it is, 
 prima facie, more likely to be so swayed ; and it may be 
 truly said that the people at large is free from certain 
 sinister interests by which governing persons are liable to be 
 influenced : as the latter are under temptations to confer on 
 themselves emoluments, privileges, and powers beyond what 
 is expedient for the public good, and to extend the work of 
 government in order to increase the mass of these advan- 
 tages. Hence, there is a strong reason for giving weight to 
 the judgment of the people at large in the decision of these 
 and similar matters, however completely we admit the need 
 of experts for the decision of most details of governmental 
 work. 
 
 But further, democratic government, in the sense of 
 government resting on the active consent of the citizens, 
 may as we have seen reasonably be preferred, not be- 
 cause it is likely to be better conducted, but because it is
 
 616 ELEMENTS OF POLITICS CHAP. 
 
 likely to be better obeyed, because it reduces the danger 
 of revolution. If the majority of a nation are able to 
 modify, in an orderly and regular way, their laws and the 
 action of their government, a minority desirous of change 
 will, ordinarily, be only tempted to resort to physical 
 force when it is hopeless of becoming a majority ; and as 
 such a minority must expect to have opposed not only the 
 majority of persons averse to the change, but also all other 
 citizens who consider the advantages of the change, if any, to 
 be outweighed by the evils of revolution, it will only be 
 under exceptional circumstances that the temptation to 
 revolution will be strong. 1 Here again, so far as our 
 acceptance of democracy rests on this latter ground, it is 
 obvious that it does not logically lead us any way towards 
 the conclusion that any ordinary honest citizen is as qualified 
 for governmental work as any other. 
 
 4. Accordingly, it is generally admitted by theoretical 
 advocates of democracy in modern times that the part of 
 governmental work which is entrusted to particular indi- 
 viduals or elected assemblies should be entrusted to per- 
 sons specially qualified. And so far as this is admitted, the 
 principle of aristocracy, as above defined, that the work of 
 government is a form of skilled labour which should be in 
 the hands of those who possess the requisite skill is im- 
 plicitly accepted. Hence, I do not consider representative 
 government even when the suffrage is universal as 
 
 1 On the other hand, the habit of regarding government as something 
 which an ordinary citizen may reasonably hope and try to get changed, if 
 he dislikes it, supplies a powerful force on the side of political change in 
 democratic communities ; and, admitting that the majority of such changes 
 will be conducted in an orderly manner, we cannot be sure that they will all 
 be so conducted, especially where there are large standing armies ; since the 
 decision, in a conflict of physical force, is likely to rest with the trained 
 soldiers ; so that a party defeated at the polls will have a temptation to 
 achieve its ends by caressing or corrupting the army. I think, therefore, 
 that there is, on the whole, no adequate reason to assume that democratic 
 governments are likely to be less in danger of violent revolution than other 
 forms of government in States of which the members do not regard govern- 
 ment as something naturally changeable. But I should still hold that when 
 government has come to be thus regarded, a democratic form of government 
 in the sense above denned affords the best chance of stability.
 
 xxx CLASSIFICATION OF GOVERNMENTS 617 
 
 merely a mode of organising democracy, but rather as a 
 combination or fusion of democracy and aristocracy. This 
 fusion or combination may become less or more aristocratic 
 in character through various minor modifications. Thus, it 
 may be made less aristocratic by increasing the intervention 
 of the people at large in legislation through measures like 
 the " referendum " and " initiative " before mentioned by 
 shortening the time for which the legislature or the ex- 
 ecutive is appointed, by the habit of demanding elaborate 
 pledges at elections, or even imposing " mandates " at other 
 times to which the representatives submit, and by the 
 practice of appointing executive officials on grounds other 
 than their qualifications for office. Correspondingly it tends 
 to be made more aristocratic by lengthening the duration 
 of parliaments, by the habit of choosing representatives for 
 proved ability, and abstaining from the exaction of pledges 
 and the imposition of mandates, and by the practice of 
 giving executive appointments to the persons best qualified 
 to fill them. But these latter modifications can hardly be 
 said to make it less democratic, in the sense in which I first 
 defined and in which alone I accept the democratic 
 principle : at least so long as the consciousness of active 
 consent remains vigorous in the citizens generally. 
 
 It may be said, however, that such an introduction of the 
 aristocratic principle as is involved in the representative form 
 of government will not be sufficient to prevent the masses, 
 stimulated by demagogues, from forcing on legislation having 
 the character which Aristotle attaches to the term " demo- 
 cracy " ; i.e. legislation oppressive to the rich, and therefore 
 sacrificing the interest of the community as a whole to the 
 sectional interest of the poor majority. As we have already 
 seen, some persons regard it as an essential characteristic of 
 the democratic form of government, that the power of govern- 
 ment is used to promote the equalisation of happiness as a 
 paramount end ; and certainly in any dispute between the 
 poor majority and the rich minority, the former, being 
 through democracy "judges in their own cause," are likely 
 to give a verdict in their own favour : especially as, from
 
 6i8 ELEMENTS OF POLITICS CHAP, 
 
 their numerical preponderance, it is easy to confound their 
 interests with that of the community as a whole. Hence it 
 may be plausibly maintained that, even if the principle of 
 electing the best qualified be carried out successfully to 
 some extent, it will not prevent the real ultimate interest of 
 the community from being sacrificed to the immediate or the 
 apparent interests of the masses ; however the persons chosen 
 as legislators or administrators may be really skilful and 
 able in adapting means to political ends, they will be under 
 irresistible pressure to use their talents in promoting sec- 
 tional rather than national interests. I myself recognise 
 that there is a serious danger of this result ; but I 
 am inclined to hope that it may be materially reduced if 
 the legislators receive no salary ; since they will then be 
 more independent, and being drawn in the main from 
 the minority of persons of wealth and leisure, will be 
 generally disposed, from training and habit, and also from 
 regard to the sentiment of their class, to do justice to 
 the reasonable claims of the rich in any disputed question 
 on which rich and poor are opposed. 
 
 In fact, by establishing non-payment of legislators, we 
 introduce an oligarchical element into the government, and 
 effect in some degree the kind of fusion between oligarchy 
 and democracy which Aristotle recommended as the best 
 practical solution of the war of classes in the city-states of 
 Greece. And I think that non-payment of legislators is 
 likely to be an institution more easy to maintain against a 
 strong drift towards democracy than other oligarchical ex- 
 pedients limited suffrage, plural vote, etc. because it has 
 the advantage, which the poor are likely to appreciate, of 
 saving money. For the same reason the oligarchical effect 
 of the measure is not likely to be extensively neutralised 
 though it may be to some extent by combinations of the 
 poor to elect members of their own class and pay them a 
 salary. 
 
 According to my view, then, the representative system 
 in its best form will realise to a substantial extent the 
 principle of aristocracy in combination with the principle of
 
 xxx CLASSIFICATION OF GOVERNMENTS 619 
 
 democracy. More often, however, in modern constitutions, 
 the principle of aristocracy has been thought to find a 
 partial application in the construction of a Senate or " upper " 
 chamber, on a non-representative basis, side by side with 
 a representative branch of the legislature. And such a 
 Senate may fairly be called "aristocratic" in the sense 
 here given to the word if its members are selected by the 
 executive on the ground of special qualifications, or obtain 
 their seats ex officio. On the other hand, heredity, pure and 
 simple the inheritance of membership of a class absolutely 
 closed is, as a mode of assigning governmental functions, 
 but doubtfully aristocratic ; l while it is intensely oligar- 
 chical, in the strict numerical sense of the term, and 
 tends to be so in the Aristotelian sense also ; since 
 such members of the governing caste as have not in- 
 herited wealth are likely to use their inherited power, 
 if it be substantial in amount, as a means of obtaining 
 wealth. So far, however, as merit opens an entrance into 
 the privileged body and demerit excludes from it, it acquires 
 a partially aristocratic character. 2 
 
 In any case, whether we view these modes of appoint- 
 ment as aristocratic or oligarchic, I conceive that any or all 
 of them are perfectly reconcilable with democracy if they are 
 only applied to a part of the supreme government, and if the 
 constitution under which they are applied rests on the active 
 consent of the citizens. It is quite conceivable that a people 
 might at once maintain a full consciousness of being able to 
 alter their government if they chose, and yet maintain even 
 heredity as an element in the construction of one or more 
 among the highest organs of government from a strong 
 apprehension of its advantages as compared with any 
 available alternative. 3 
 
 1 See Chap. XXIII. 3. 
 
 2 The English peerage has the former of these characteristics ; and should 
 it ever be thought worth while to reform the House of Lords while retaining 
 its hereditary basis, it would seem desirable to increase its aristocratic quality 
 by some arrangement tending to exclude the sons of peers who have given 
 no evidence of qualification for the work of government. 
 
 3 I do not, however, think this result probable. See Ch. XXIII. 3.
 
 620 ELEMENTS OF POLITICS CHAP. 
 
 5. The last statement applies equally to the case in 
 which one of the highest organs of government is an 
 individual. Indeed the principle of monarchy in the wide 
 sense before explained the attribution of large govern- 
 mental powers to a single individual would seem, so far 
 as rationally justifiable, to be a particular application of 
 the principle of aristocracy ; since it is obviously desirable 
 that such an individual should possess very special qualifica- 
 tions for government. Still, it seems better to treat the two 
 principles as distinct ; since, as we saw, the main argument 
 for monarchy does not depend on the possibility of finding 
 an individual uniquely qualified for the work entrusted to 
 him ; but rather on the advantages gained by the concen- 
 tration of power and responsibility l in one man's hands, 
 even when the individual selected may not be markedly 
 superior to several other available candidates for the post. 
 It is to be observed that the importance of these advantages 
 as compared with the gain of the more many-sided and 
 balanced consideration of questions, and the more circum- 
 spect and generally more influential judgments, that may 
 be expected to be obtained from a bench or council or 
 assembly, is very different in different departments of 
 work. No one, I think, doubts that it is better to entrust 
 the management of a campaign to a single man ; on the 
 other hand, it is generally agreed that the legislative organ 
 in a modern State must, with a view to efficiency as 
 well as to popular acceptance, include a number of persons 
 representing respectively different sections of the com- 
 munity ; nor would any one propose that the supreme 
 court of justice should consist of a single judge. The sphere 
 of the monarchical principle is to be found, if anywhere, in 
 the organisation of the executive. 2 The practical questions, 
 then, for modern states, so far as monarchy is concerned, are 
 (1) how far is it desirable that the executive should be under 
 
 1 It must be observed that if the monarch obtains his post by inherit- 
 ance, the responsibility is only maintained by the fear of disapprobation and 
 disorder. 
 
 2 It should be observed that the monarchical principle in the wide sense 
 here used may be applied in a subordinate way by organising each separate
 
 xxx CLASSIFICATION OF GOVERNMENTS 621 
 
 a single head ? and (2) how far is this arrangement recon- 
 cilable with the prevalence of democracy ? 
 
 The first question has been fully considered in a previous 
 Chapter (XXII.). We saw that in the English system of 
 parliamentary government, though the supreme executive 
 cabinet may be for long periods completely under the 
 control of the prime minister, it is hardly possible to secure 
 this result; since the extent of the predominance of the 
 prime minister over his colleagues must largely depend on 
 his personal influence with Parliament and with the people. 
 It seems therefore necessary, in order to give the supreme 
 executive a regularly monarchical organisation, that the 
 effective head of the executive whether holding office for 
 life or for a short period should be irremovable by Parlia- 
 ment. Accordingly, in Chapter XXII. I discussed the ad- 
 vantages and drawbacks of various measures designed to 
 secure a substantial amount of independence to a president 
 appointed for a fixed period, or a hereditary monarch who is 
 understood to govern as well as reign. And turning now 
 to the second question I do not think that such measures 
 can be properly regarded as " anti-democratic," if it be once 
 admitted that it is not inconsistent with democracy for the 
 people to entrust a part of the work of government to par- 
 ticular individuals or bodies. I do not even conceive it to be 
 in any way undemocratic in principle, though it would doubt- 
 less be practically dangerous, to give the supreme control of 
 the whole current work of government, legislative, adminis- 
 trative, and judicial, to a single ruler for a limited period : 
 provided the period be sufficiently short to make the respon- 
 sibility of the ruler to the people a reality, and to keep alive 
 both in his mind and theirs the consciousness of their con- 
 stitutional function of judging their ruler's work. But such 
 a concentration of power no one would propose for a West- 
 department of the executive under a single head, with a considerable power 
 of making independent decisions, even though supreme executive power is 
 vested in a council or assembly. The expediency of this mode of organisation 
 has been already discussed (Chap. XXI.), and I have thought it best not to 
 complicate the present discussion by introducing this question here.
 
 622 ELEMENTS OF POLITICS CHAP, xxx 
 
 European State except, perhaps, temporarily as a remedy 
 for prolonged disorder ; it is agreed that the monarch in 
 the most monarchical modern State must normally govern 
 along with a legislature independently elected, and judges 
 whom he cannot of his own sole will dismiss. And, as 
 I before argued in considering aristocracy, it seems to me 
 not inconsistent with the principle of democracy, as I have 
 denned it, that a power of this latter kind should be held 
 for life, and even transmitted by inheritance, instead of 
 being obtained for a short period by election. 
 
 In conclusion, it may be observed that when we compare 
 the forms of government of the ancient Greek city-state 
 with those of the modern West-European state, we cannot 
 but note the diminished one-sidedness with which the 
 different principles that we have been discussing tend to 
 manifest themselves in the latter case. In the most civilised 
 period of the Greek city-states we find oligarchical govern- 
 ment maintained or revived in a certain number of cases, 
 with occasional lapses into unqualified despotism ; while, 
 where the democratic principle is triumphant, it manifests 
 itself in institutions such as huge popular juries and 
 magistrates chosen by lot which the most democratic of 
 modern publicists cannot approve. In modern West- 
 European states we see no tendency to pure oligarchy 
 and but little tendency to pure despotism : the representa- 
 tive system naturally combines with democracy an element 
 of aristocracy in the sense of government by persons 
 specially qualified : and the principle of monarchy has also 
 been to an important extent maintained in combination with 
 that of democracy. Nor do I see any reason to think that 
 either the need of special qualifications for the efficient 
 performance of governmental work, or the advantages of 
 unity of administration, are likely to diminish, or to be less 
 appreciated, in the future history of these states, so far as 
 we may without rashness conjecturally forecast it.
 
 CHAPTEE XXXI 
 
 SOVEREIGNTY AND OKDER 
 
 1. In discussing, in Chapter II., the relation between Law 
 and Government we were led to consider the widely-affirmed 
 proposition that the power of the Sovereign or Supreme 
 Government in a state is legally unlimited. The view I 
 took was that there is usually a sense in which this pro- 
 position is true ; i.e. there is usually some legislature, 
 ordinary or extraordinary some individual body, or com- 
 plex system of bodies that has the legal right to alter 
 any law whatever : but that in many cases it would be at 
 least misleading to say that there is no legal limit to its 
 power ; since the very structure of this supreme legislature, 
 being legally determined, may practically limit its power of 
 acting. But in the course of the discussion it became 
 evident that the question " where supreme political power 
 actually and ultimately resides " in any society is a difficult 
 and complex one ; and that we do not by any means obtain 
 a clear answer to it when we have ascertained where the 
 legal right of altering the laws of the state ultimately lies. 
 It is this more difficult question that I propose now to 
 consider. 
 
 Before attempting to answer the question it is important 
 to obtain as clear a conception as possible of its meaning. 
 " Power," in the widest sense in which we are here con- 
 cerned with its definition, is said to be exercised by any 
 person whose directions are habitually carried into effect by 
 
 623
 
 624 ELEMENTS OF POLITICS CHAP, 
 
 other persons. 1 But political power is clearly only one 
 species of this. Thus, a leading critic of literature may be 
 said to exercise power when his directions to buy and read 
 certain books are widely carried out by cultivated members 
 of his community ; but he would not be said to exercise 
 political power. And this is not merely because the regula- 
 tion of literary taste is not a normal function of government. 
 For similarly, if a physician's directions to parents in general 
 to vaccinate their children were widely obeyed from general 
 confidence in his medical skill, he might be said to exercise 
 power ; but it would still not be political power ; z though 
 if the legislature issued the same orders and obtained similar 
 obedience it would be exercising political power. The 
 obvious difference is that the legislature's orders might be 
 enforced by physical violence : if it commanded vaccination 
 under penalties, the requisite physical force would be 
 exercised by certain other members of the community for 
 the enforcement of the penalties, and this exercise of force 
 would not be resisted by the bulk of the rest of the com- 
 munity. 
 
 But then directions, backed with physical force, might be 
 similarly given by a secret agrarian society in Ireland, or a 
 " Mafia " or " Camorra " in Italy, with the effect of securing 
 obedience. Would this be an exercise of political power ? 
 Our answer to this question would depend on the extent of 
 the obedience. In any case the physical force would be 
 illegal and anti-governmental ; but if the directions backed 
 by this illegal force were obeyed to anything like the same 
 extent as the directions of Government, we should recognise 
 that the power normally belonging to G-overnment had been 
 partly transferred to the illegal directors, in a disorderly 
 way. It may, however, be held that the power thus trans- 
 ferred would not be properly political, on the ground that 
 
 1 In a stricter sense, ' ' power " is only exercised when the obedience which 
 is its counterpart is prompted by the prospect of consequences depending on 
 the will of the person obeyed. See p. 626. 
 
 2 Unless the physician's directions were obeyed in spite of an order of 
 Government prohibiting vaccination. In this case it would at least be 
 doubtful whether he had not a share of political power.
 
 xxxi SOVEREIGNTY AND ORDER 625 
 
 the " political " character of a society is lost or impaired 
 when it falls into disorder and anarchy. Hence, in con- 
 sidering where supreme political power resides in a state 
 that has a certain constitution, it seems best to assume the 
 state to be orderly ; i.e. to assume that no commands are 
 widely 1 obeyed by adults from fear of physical force, except 
 those issued by or under the authority of Government. 
 In such a state, then, political power of any importance, if 
 not solely exercised by the organs of Government, must at 
 least take effect through them. 
 
 At the same time it cannot be said that the motive to 
 the general obedience which is the counterpart of political 
 power is always fear of the physical force which Govern- 
 ment is able, in the last resort, to wield : experience shows 
 that various other motives co-operate in producing obedience 
 to Government. Apart from mere habit and custom, the 
 predominant motive in any particular case may be moral, 
 springing from the opinion that Government has a right to 
 command. Or especially in the case of those who are 
 " servants " as well as subjects of Government it may be 
 hope of remuneration, or fear of dismissal from service. Or, 
 again, in some cases the motive may be fear, not of the 
 exercise of the physical force which Government directs, but 
 of its non-exercise ; fear of the withdrawal of the aid or 
 protection of Government. In short, while the fear of 
 physical force must be recognised as having a place among 
 the motives that produce general obedience to the commands 
 of Government, it need not be the sole motive, nor that 
 actually operative in any particular case. 2 
 
 1 I say "widely," because the normal structure of government including 
 as it does an apparatus for detecting, judging, and punishing crime implies 
 that a certain amount of illegal force will continually he exercised, and it is 
 probable that some of this force will be occasionally used to procure obedience 
 to illegal orders ; therefore, when we speak of a state as in an orderly con- 
 dition, we must be understood to mean that the illegal coercion exercised in it 
 does not exceed a certain vaguely defined amount being due not to abnormal 
 weakness on the part of the Government, but chiefly to the difficulty of 
 capturing all criminals and proving all crimes. 
 
 2 It is, indeed, conceivable that order might be maintained throughout a 
 certain region by a Government resting on public opinion or supernatural 
 
 2s
 
 626 ELEMENTS OF POLITICS CHAP. 
 
 S 2. Hence arises a question of great importance in deter- 
 mining the attribution of supreme political power. Suppose 
 that an individual or body which is a recognised organ of 
 Government, and whose orders accordingly obtain general 
 obedience partly from fear of orderly physical force, habitu- 
 ally obeys the directions of another individual or body from 
 fear not of physical force at all, but of other consequences : 
 is the power exercised by the latter political power ? E.g. 
 if a monarch habitually obeys the directions of his minister, 
 believing in the latter's wisdom and fearing the discredit of 
 acting foolishly but no further evil does the minister 
 exercise political power over the monarch ? Or, again, if a 
 secular monarch habitually obeys the directions of a priest in 
 matters of secular government, from fear of the extra-mundane 
 consequences divine wrath or disfavour which he expects 
 to follow from disobedience, is the priest, so far as he obeys 
 no one else, politically supreme ? Or if the monarch has 
 an ambitious mistress, able to dictate to him through his 
 fear of offending her, are we therefore to attribute supreme 
 political power to the mistress ? 
 
 Perhaps in the first two cases, it may be said to be rather 
 " influence " than " power," strictly so called, that is exer- 
 cised ; if the minister is not supposed to cause the bad con- 
 sequences of nonconformity to his directions, and if the 
 priest is merely understood to warn the monarch of the 
 extra-mundane penalties that will attend certain kinds of 
 conduct, independently of the priest's volition. Accepting 
 this limitation, we may observe that the priest, at any rate, 
 may also be naturally understood to threaten divine wrath 
 of which he can control the operation, in virtue of a divine 
 commission to " bind or loose " ; and if by such threats he 
 induces the monarch to issue commands in conformity to 
 his priestly dictation, we shall agree that he exercises 
 
 sanctions alone ; which would accordingly be distinguishable from the 
 government of any voluntary association that exists in modern States only 
 by its power of compelling those who would not obey it to emigrate. Bat 
 such a Government at least in a modern civilised State is so purely 
 imaginary that I need not discuss it further.
 
 XXXI SOVEREIGNTY AND ORDER 627 
 
 power, political in its effects if not in its nature. And, 
 generally, if a monarch, otherwise clearly supreme, habitually 
 conforms to the directions of another person from fear of 
 consequences which are believed to depend on that other 
 person's volition and if that other person is not similarly 
 directed by a third party it seems clear that the ultimate 
 power of producing political effects has temporarily passed 
 from the monarch to his director. At the same time 
 we should hesitate to affirm a transfer of sovereignty in 
 such cases ; the reason being, that the consequences feared 
 are not supposed to be of a kind which would still prevent 
 the monarch from exercising supreme power unimpaired, if 
 he made up his mind to face them. 1 It would seem, there- 
 fore, that power exercised on an organ of Government is not 
 to be regarded as the power of a political superior unless the 
 person or body of persons exercising it is able to enforce 
 obedience to its dictates by withdrawing or diminishing the 
 governmental power of the organ. 
 
 To make this clearer, let us take another case otherwise 
 very similar to those just discussed in which the conse- 
 quences feared are incompatible with the unimpaired exercise 
 of political power by the person who obeys from fear of 
 them. Suppose that a monarch habitually obeys a priest, 
 not from fear of the extra-mundane penalties threatened by 
 the latter, but from fear of finding it difficult to obtain 
 obedience from his subjects if they believe him to be a 
 special object of God's anger, we shall agree that he no 
 longer completely possesses supreme political power. And 
 if the influence of the priesthood over the monarch's subjects 
 were so strong that the bulk of them would unquestioningly 
 obey a direction of the chief priest to cease obeying the 
 monarch, and if, therefore, the chief priest's directions were 
 
 1 It would no doubt be rhetorically admissible to say that under Louis 
 XIII. Richelieu, or under Louis XV. the Pompadour, was the political sove- 
 reign of France ; but the phrase would be recognised as a flight of rhetoric. 
 And the reason for this clearly is, that the minister and the mistress would have 
 lost their power the moment they lost the king's favour ; the king would 
 have retained his power whether Richelieu or the Pompadour had been dis- 
 pleased with him or not.
 
 628 ELEMENTS OF POLITICS CHAP. 
 
 habitually obeyed by the monarch, it would hardly be 
 denied that the priest had become, really if not nominally, 
 the political superior of the monarch, and that the type of 
 government had been transformed from a monarchy to a 
 theocracy. This would be the case even though the priest 
 never tried and might not have been obeyed if he had 
 tried to assume the monarch's place, and give commands 
 regularly, as a political superior, on the ordinary matters 
 of secular government. E.g. if, in the Middle Ages, the 
 Pope could have deposed and appointed secular monarchs 
 at will, without meeting with serious resistance, he would 
 surely have been supreme in western Christendom, although 
 the Church, while claiming to control the " two swords " 
 secular and spiritual never claimed to wield the secular 
 sword. And speaking more generally, if any individual 
 has unquestioned l power of withdrawing power from the 
 otherwise supreme government of a state, and is habitu- 
 ally obeyed by this government from fear of such with- 
 drawal, we must regard the said individual as possessing 
 supreme I do not say unlimited political power. The 
 same may be said if, in place of an individual, we have a 
 body completely capable of corporate action, i.e. a body 
 that can act corporately at any time without material 
 delay, and not so constructed as to have materially more 
 difficulty in acting than in not acting. For instance if, 
 in a country under simple parliamentary government, any 
 constituency could dismiss its representatives at any time 
 by the vote of a simple majority, means being provided 
 for enabling it to meet and vote, on the requisition of an 
 adequate number of electors, and if, in consequence, the 
 mandates of the constituencies were habitually obeyed by 
 the representatives, it could hardly be doubted that the 
 electorate was sovereign. 
 
 3. There are other cases, however, in which it is less 
 clear whether the power of dismissal implies supreme 
 political power. 
 
 1 The case in which the attempt to withdraw power would lead to conflict 
 and disorderly violence will be considered later.
 
 xxxi SOVEREIGNTY AND ORDER 629 
 
 Suppose that the body which can dismiss the other- 
 wise supreme government does not dismiss it and gives no 
 directions. Is it still supreme ? assuming that its in- 
 activity is not due to fear. I think we must say that the 
 power of dismissal or any other power of giving orders 
 is still possessed though it is not exercised] assuming 
 that the inactive organ would be obeyed if it gave orders. 
 But it should be noted that in practice there is usually a 
 difficulty in ascertaining whether a power that has remained 
 long unexercised has not wholly or partially decayed. This 
 point will be further discussed presently : meanwhile, on 
 the assumption that no such decay has taken place, I think 
 we must attribute supreme power to any individual or body 
 completely capable of corporate action, which admittedly 
 can withdraw power at will from a Government otherwise 
 supreme. 
 
 But the case is different if the power can only be with- 
 drawn at the end of a certain period ; since then it is 
 possible that the organ which can thus withdraw power 
 might not be obeyed during the interval by the organ from 
 which it can withdraw it. Suppose an irresponsible dic- 
 tator appointed by a popular assembly for a term of years 
 and not desiring reappointment ; surely he must be held to 
 be temporarily sovereign. Suppose, however, that, holding 
 office for a fixed period, he desires reappointment ; then, so 
 far as the directions of the assembly are in consequence 
 habitually obeyed by him, we must say that it exercises 
 supreme power ; and if we can be sure that they would be 
 obeyed, we must say that it has supreme power though it 
 does not exercise it. But it is obvious that the extent 
 to which power is possessed under these circumstances 
 by a body that does not exercise it cannot be certainly 
 known but only conjectured with a varying degree of 
 probability. 
 
 But further ; we have to take note of cases in which 
 the body constitutionally qualified to dismiss and direct the 
 permanent organ of (ordinarily) supreme government is not 
 completely capable of corporate action. For instance, the
 
 630 ELEMENTS OF POLITICS CHAP. 
 
 body in question may not be always in existence as a body, 
 or may be incapable of acting corporately in relation to a 
 given question, unless the agreement of considerably more 
 than a simple majority of its members can be attained. 
 Suppose that a Parliament can dismiss the executive, but 
 cannot meet without the consent of the executive except in 
 the first year of every four ; it is evident that for three years 
 its power over the executive will not be greater than if the 
 latter held office for a fixed period. Suppose, again, that in 
 a federal polity the legislatures of the part-states have an 
 undisputed right to change the constitution, but only by 
 the vote of three-fourths of their number ; it may be that, 
 although there are many changes desired by a clear majority 
 of part-states, there is no change whatever on which the 
 agreement of so large a number is attainable ; the body that 
 would be supreme if it acted may be unable to act at all. 
 We may still say in a certain sense that sovereignty belongs 
 to the aggregate of the legislatures of the part-states ; but 
 only in a very peculiar sense, which it is necessary to 
 explain if the statement is not to be misleading. 
 
 4. This last consideration leads naturally to a question 
 which has sometimes been placed in the forefront of the 
 whole discussion. If we attribute supreme power to a body 
 that has a constitutional right to change the structure and 
 regulate the action of government, even when this power can 
 only be exercised by a majority so large as to be rarely 
 attainable, ought we not on similar grounds to attribute 
 it to the mass of the people in any state ? since in any state, 
 if a sufficiently large majority of the people altogether refused 
 obedience, the power of government would come to an end. 
 
 I think we must admit l that there is, for this reason, a 
 certain sense in which the mass of the people in any country 
 may be said to be the ultimate depository of supreme political 
 power. Still, to say without qualification that the people is 
 everywhere sovereign would be altogether misleading ; since 
 the statement would ignore the fundamental distinction 
 
 1 Unless we deny that the possession of power can be unconscious ; and it 
 would be paradoxical to deny this in the case of an individual.
 
 xxxi SOVEREIGNTY AND ORDER 631 
 
 between power that is unconsciously possessed and therefore 
 cannot be exercised at will and power consciously pos- 
 sessed. An aggregate of men do not become conscious of 
 their power as a body, until they become confident of 
 mutual co-operation for the realisation of common wishes ; 
 and this confidence is, under ordinary circumstances, 1 only 
 acquired gradually by the habit of acting in concert. 
 Accordingly, when the governed are without the habit of 
 acting in concert, they are, as a body, unconscious that they 
 possess the power of refusing obedience to their govern- 
 ment. Even the knowledge that obedience could not be 
 enforced if an overwhelming majority agreed to refuse 
 it, and that an overwhelming majority would be glad to 
 disobey if each could rely on the co-operation of the others, 
 would not necessarily give a consciousness of power to dis- 
 obey with impunity : since mutual communication sufficient 
 to produce the requisite mutual reliance may be wanting ; 
 and in its absence, each and all may be effectually restrained 
 from disobedience by fear of the penalties it would entail. 
 So far as the Government is, for this reason, able to count 
 on the obedience of the mass of the people even when they 
 dislike what it commands, though we may still attribute 
 power to the people, we must add the fundamentally im- 
 portant qualification that it is an unconscious and unexer- 
 cised power. 
 
 The case is different if the conduct of Government is 
 to any extent determined by fear of a general refusal of 
 obedience on the part of the governed, even though the 
 latter are not conscious of so determining it. It may 
 perhaps be urged that this hypothesis has hardly any 
 practical importance ; for granting that Government might 
 behave so as to cause a complete refusal of obedience 
 by an overwhelming majority, no such behaviour is within 
 the limits of probability, and the fear of it is not actually 
 a motive influencing Government. The worst that any 
 Government actually fears from its subjects is partial 
 
 1 In exceptional cases it might be called out rapidly, by some violent and 
 sustained excitement of popular emotion.
 
 632 ELEMENTS OF POLITICS CHAP. 
 
 resistance, disorder, and conflict, in which Government may 
 be beaten ; and it may be said that the suggestion of such 
 conflict is incompatible with our fundamental assumption 
 that order is maintained. But I think that though it is 
 legitimate to assume that the States which we contem- 
 plate are not actually anarchical and disorderly, since 
 many States are for long periods approximately exempt 
 from these conditions our suppositions will be too remote 
 from the facts if we assume that the fear of causing dis- 
 order is not a restraining force, operating to keep the 
 exercise of the power of any nominally supreme government 
 within limits. Such restraints to governmental power 
 are doubtless ordinarily indefinite, but they must be held 
 to exist in the most orderly States ; though in some 
 cases they may be only potential restraints, because the 
 Government has no actual desire to do anything which would 
 provoke disorder. And, so far as we thus recognise the 
 fear of disorder as an actual force restraining Government, 
 we must correspondingly recognise an unconscious exercise 
 of political power by the people at large, even in the least 
 democratic communities. 
 
 The difference is doubtless vast between such unconscious 
 exercise of power by the mass of the governed, as may exist 
 under an oligarchy or an absolute monarchy, and the 
 " active consent " to the operations of government which we 
 have regarded as characteristic of democracy. Still the 
 interval between the two is filled up by various degrees of 
 conscious imposition of popular wishes on government, which 
 we may regard as inchoate democracy. I do not consider 
 that democracy is fully developed until the mass of (at 
 least) the male adults have the regular function of electing 
 their government or determining its rules of action, or 
 both. But before this stage is reached the mass of the 
 people may have more or less effective means of impressing 
 their wishes on their government. 
 
 A case deserving special notice is where the mass of the 
 people have no constitutional rights, but have recognised 
 leaders whom the Government credit with the power of
 
 xxxi SOVEREIGNTY AND ORDER 633 
 
 producing dangerous disorder, and consequently fear to dis- 
 please. In this case, though the influence of the leaders 
 over their followers is not strictly political power, 
 since the obedience of the followers is not due to their 
 fear of the leaders, the power of the leaders over the 
 Government must be admitted to be political. We should, 
 indeed, regard its existence as incompatible with perfect 
 political order : but it is important to recognise that without 
 actual disorderly violence, or refusal of obedience to the 
 ordinary government, the distribution of political power may 
 bo materially modified for an indefinite period by the fear of 
 possible disorder. In considering before the case of a chief 
 priest dismissing the secular government, I assumed for 
 simplicity that his power to dismiss was so unquestioned 
 that its exercise would not be resisted. But more ordinarily 
 the extent to which obedience would be withdrawn, if the 
 monarch refused to conform to the priest's direction, would 
 only be partial : so that the priest's power, like that of the 
 popular leader here spoken of, would be based on the fear of 
 disorder. 
 
 Here we may recur again to the question before raised, 
 whether political power long unexercised has decayed or still 
 exists unchanged : since the reason why it is often difficult 
 to answer this question is that a power formally attributed 
 to a certain organ of government which has for a long time 
 not been exercised, cannot be exercised without a breach of 
 custom. It may be that this breach of custom would only 
 cause surprise and moral disapprobation : if so, the power in 
 question must be held to be still in full vigour : but if there 
 is a danger that its exercise would provoke resistance and 
 disorder, and if the fear of these consequences prevents its 
 exercise, it must be admitted to have decayed. 
 
 5. The modifications in the distribution of political 
 power produced by the fear of disorder, in any of the ways 
 just discussed, cannot be ignored if we are seeking a com- 
 plete answer to the question where supreme political power 
 rests in a given State. At the same time, if the question is 
 asked with reference to a class of States defined as pos-
 
 634 ELEMENTS OF POLITICS CHAP. 
 
 sessing a certain governmental structure especially a cer- 
 tain definite allotment of Legislative, Executive, and Judicial 
 functions to distinct organs, we cannot take account of 
 modifications of this kind ; as we cannot infer from a mere 
 contemplation of the form of the polity to what extent 
 or in what precise manner they will occur. For a similar 
 reason, if we are considering this abstract question, we 
 must extend still further the assumption that the State 
 contemplated is in an " orderly " condition : we must take 
 " order " to include not only obedience on the part of 
 the bulk of the governed, but observance of assigned limits 
 on the part of the organs. In illustrating this, I shall 
 assume for simplicity that the constitution provides no legal 
 method of changing the constitutional allotment of powers, 
 though it may be substantially modified by custom and con- 
 vention. As we saw before, so far as the constitution is legally 
 changeable, it is obviously in a sense true that supreme 
 power rests with the aggregate of individuals or bodies 
 whose consent can legally change it ; putting disorder and 
 the fear of disorder out of account. Still, in proportion as 
 the process of change is difficult, and requires the concur- 
 rence of several distinct bodies or individuals, and perhaps 
 also more than a bare majority in one or more of these 
 bodies, the formally unlimited power of changing the 
 constitution becomes practically reduced by the difficulty 
 of putting it into operation ; so that the question how 
 political power is distributed so long as the constitution is 
 unchanged becomes correspondingly more important. 1 And 
 this is, of course, the only question that we have to consider, 
 in respect of the attribution of supreme power, if the con- 
 stitution is legally unchangeable, so long as we exclude 
 disorder and the fear of disorder. If then, we are to answer 
 this question from a consideration of the constitutional 
 allotment of powers, we must assume that no organ will 
 act contrary to the design of the constitution and misuse 
 the power entrusted to it, in order to encroach on the sphere 
 
 1 This is strikingly exemplified as I have before observed by the United 
 States of North America.
 
 xxxi SOVEREIGNTY AND ORDER 635 
 
 of power assigned to any other organ. For such encroach- 
 ment is likely to be resisted by other parts of government : 
 and we cannot say whether it will be successful or not, 
 without knowing more of the state of public opinion than 
 we can reasonably infer from the form of the polity. It 
 is quite conceivable that an attempted perversion of the 
 original design of a constitution might by favour of public 
 opinion be successful in one State, though it would be 
 generally disapproved and successfully resisted in another 
 State with a similar constitution: the manifestation of 
 public opinion acting partly as moral pressure on the other 
 organs that might otherwise resist the encroachment, partly 
 as indicating on which side the physical force would lie if 
 the dispute between the organs of government became a 
 conflict a outrance. 
 
 For instance, suppose that, in a State with a new 
 Constitution, all appointments in the military and civil 
 service have been expressly given to a hereditary (or elected) 
 head of the executive, while the power of determining the 
 annual budget is given to a representative assembly ; and 
 suppose that the assembly refuses its assent to necessary 
 taxation in order to force the head of the Executive to 
 give the most important employments to members of 
 Parliament. This might fairly be regarded as a clear 
 perversion of the design of the constitution: and being 
 so regarded, it might be held to justify the Executive in 
 raising, without the consent of the assembly, taxes pre- 
 viously granted ; even though the latter step would be a 
 more palpable violation of the constitution than the former. 
 For since this step would be taken in order to defend the con- 
 stitutional division of powers, its conservative intent might be 
 so widely held to justify its revolutionary character that the 
 unconstitutional taxes would be paid without serious resist- 
 ance. Whether this would or would not be the case cannot 
 be predicted from a mere study of the form of government : 
 it must depend on the actual condition of public opinion in 
 the community in which the experiment is tried. 
 
 So again : where the Executive has the power of
 
 636 ELEMENTS OF POLITICS CHAP. 
 
 adding new members to the Senate without a definite 
 limit of number, 1 it may fairly be contended that it is 
 the constitutional duty of the Executive to select the persons 
 generally best qualified to be senators, and that it would 
 therefore be a palpable misuse of the power if an unusually 
 large addition were made to the Senate in order to obtain 
 a majority in favour of a particular measure ; and if the 
 Senate were strong in prestige and popularity, public opinion 
 might support it in treating this use of the power of the 
 Executive as a disorderly proceeding, and meeting it with a 
 novel resistance. 
 
 Similarly, in any constitution, encroachments by one 
 organ of government at the expense of another, and conse- 
 quent changes in the distribution of power, will be prac- 
 tically possible in certain states of public opinion, and not 
 possible in others : so that the actual distribution of poli-. 
 tical power at any time cannot be determined from a mere 
 knowledge of the legal structure of government. 
 
 I have above taken cases of conscious and manifest 
 encroachment. But it is to be observed that if the clauses 
 of the constitution are ambiguous, similar conflicts may 
 arise between different parts of the supreme Government 
 without any intention of encroachment on either side ; each 
 party being sincerely convinced that it is acting in accord- 
 ance with the design of the constitution. Now, if the func- 
 tion of interpreting the Constitution is definitely assigned 
 to a particular organ, it may seem that, in such cases of dis- 
 pute, this organ must decisively determine the legal distri- 
 bution of power, though the customary or conventional 
 distribution may diverge from the legal. And if so, it may 
 seem that this organ, having the function of determining the 
 precise extent of the powers of other organs and of its own 
 powers, will be practically supreme, at least so far as the con- 
 stitution may at any time be regarded as practically perma- 
 nent. But the matter is not really so simple as this. Let us 
 suppose, for definiteness, that the interpreting body is the 
 supreme court of judicature ; since such a court will, through 
 1 As is the case in England with the House of Lords.
 
 xxxi SOVEREIGNTY AND ORDER 637 
 
 the professional training of its members, have an obvious fit- 
 ness for the function of interpretation. In considering how 
 this court will decide a constitutional dispute we have to 
 distinguish between what the judges would decide as ex- 
 perts, assumed to have the single-minded aim of performing 
 properly the function assigned by the Constitution, and what 
 they are likely to decide, assuming them to be average 
 men, morally speaking, and accordingly actuated by mixed 
 motives. 
 
 So far as they decide as experts, they will be bound by 
 recognised maxims of legal interpretation, applied to the 
 clauses of the Constitution (if written), or to the precedents 
 of constitutional practice ; thus they will obviously have no 
 such liberty of deciding by their own judgment of what is 
 best as a supreme legislature would have. On the other 
 hand, it cannot be said that, whatever be the duty of the 
 judges, they have clearly the power of deciding what they 
 choose ; for, even if their constitutional independence is 
 duly secured, they will almost always be restrained by more 
 than moral sanctions from a palpably perverse interpreta- 
 tion. For firstly, the due independence of the judiciary is 
 compatible with liability to impeachment for palpable breach 
 of duty ; and if this liability be imposed, it is clear that 
 the judges will act under the restraint of the fear of im- 
 peachment. Secondly, even if they are constitutionally 
 irremovable by impeachment or otherwise, the supreme 
 court may be not constitutionally limited in numbers ; and 
 in this case it will be possible for the legislature or the 
 Executive to prevent or cancel a hostile decision of the 
 court by adding new judges ; and this measure, though 
 semi-revolutionary, would be probably supported by public 
 opinion, if provoked by a palpable breach of duty on the 
 part of the existing judges. Finally, even if the court is 
 constitutionally irremovable and absolutely limited in 
 number, I conceive that it will be restrained from perverse 
 interpretation by a special fear of provoking disorder ; 
 that is, by a fear of provoking the other organs of govern- 
 ment to revolutionary measures which the judges would be
 
 638 ELEMENTS OF POLITICS CHAP. 
 
 powerless to resist. I have supposed that the judges are 
 not dismissible by the Legislature or the Executive or as 
 in England by both combined ; since no one would con- 
 tend that judges so dismissible have supreme power as 
 interpreters of the Constitution. 1 
 
 Finally, before concluding this discussion, I must notice 
 another transfer of political power which may take place 
 without disorder in a polity where the governed elect the 
 governors i.e. transfer to leaders of opinion outside the 
 Government, whose directions to the Government are to 
 some extent obeyed, from fear that otherwise they will use 
 their influence over the electors to prevent the reappoint- 
 ment of the governing persons. To what extent this 
 transfer will take place we cannot tell from the form of 
 the polity, but we must recognise that it may take place 
 to an indefinite extent. 
 
 6. I have discussed at length the various points to be de- 
 termined in seeking a precise answer to the question " where 
 supreme political power resides " in any State ; partly be- 
 cause I think that they have not been adequately considered 
 by Austin and other expositors of the modern doctrine of 
 sovereignty, who usually appear to assume that the question 
 always admits of a simple answer. 2 My view, on the con- 
 trary, is that in a modern constitutional State, political 
 power that is not merely exercised at the discretion of a 
 political superior, and that must therefore be regarded as 
 supreme or ultimate is usually distributed in a rather com- 
 plex way among different bodies and individuals ; though, 
 as I have said, it is also important to bear in mind that 
 from the mere form of government in any state we can 
 
 1 In this case what actual judges are likely to decide must always be 
 doubtful, since the force that the power of dismissal is likely to exercise can- 
 not be easily estimated. E.g. if a monarch alone can appoint or dismiss the 
 members of the body that interprets the Constitution, this makes it more 
 likely that they will decide in his favour a question disputed between 
 him and Parliament ; but it is not therefore certain that they will do this 
 in cases in which the judgment of unbiassed experts would clearly go the 
 other way : since they will both themselves fear the censure of such experts, 
 and expect the monarch to be more or less influenced by it. 
 
 2 See Appendix A.
 
 XXXI SOVEREIGNTY AND ORDER 639 
 
 only conjecture very incompletely the actual distribution 
 of the power of producing political effects. 
 
 My reasons for this view have been sufficiently explained 
 in the preceding discussion ; but they will be further illus- 
 trated by considering the question in relation to the forms 
 of government which we have been chiefly led to contem- 
 plate in our attempts at political construction. 
 
 I. Let us first assume that the Constitution is what I 
 have called flexible i.e. that there is no formal distinction 
 between ordinary legislation and the process of changing the 
 Constitution. Prima facie, in such a form of government 
 supreme power rests with the ordinary legislature, as it can 
 make any change in the Constitution, without regard to the 
 wishes of any other body. But we have to recognise that 
 this power is confined within limits by the fear of provoking 
 disorder ; and in the case of a legislature that contains a 
 representative assembly, it is, I conceive, ordinarily, limited 
 by a clear, even if unexpressed, understanding that this part 
 of the legislature shall not be deprived of its representative 
 character. A state of opinion is indeed conceivable in 
 which the English or any similar Legislature might 
 abolish the representative character of the House of 
 Commons by statute : but I conceive that such a change 
 would, in any case, be regarded as a breach of established 
 order. I shall assume, therefore, that however flexible a 
 Constitution may be, its flexibility is limited by the condi- 
 tion that elective organs must remain elective. The further 
 limitations on its power will depend partly on the form of 
 government, partly on other conditions which we will 
 proceed to analyse, taking different cases. 
 
 1. Suppose Simple Parliamentary Government, with a 
 single chamber appointed for a fixed period, the executive 
 having no share in legislation. Here the chamber may be 
 temporarily the sole possessor of supreme power within 
 the vague limits which it could not transgress without 
 danger of causing disorder but only if the members do 
 not desire re-election ; so far as they desire re-election 
 whether on public or on private grounds a share of
 
 640 ELEMENTS OF POLITICS CHAP. 
 
 supreme power will be possessed by the electorate, in virtue 
 of their power of future dismissal. But the extent of the 
 electorate's power may vary very much with variations in 
 (1) the duration of Parliament, (2) the activity of the poli- 
 tical consciousness of the electors, (3) their personal inde- 
 pendence, (4) the possibilities of modifying the franchise. 
 It would be practically at the maximum if parliaments 
 were annual, if all the electors had a continued active 
 interest in public affairs, and were prepared at any moment 
 to meet and vote resolutions or sign petitions, and if no 
 alterations of the franchise were practically available in 
 the interest of the party dominant in Parliament ; provided 
 also that the legislators could not personally influence 
 the electors by hope or fear without losing more through 
 general disapprobation than they would gain by bribery 
 and intimidation. But in any particular case it may be 
 indefinitely less than this. 1 
 
 Further, the influence exercised by leading men on the 
 people at large, or by committees of a party character, 
 elected to watch legislation and advise the representatives, 
 may give these individuals or bodies some power over 
 Parliament, and therefore some share of supreme political 
 power ; though it will not diminish the political power of 
 the electorate according to the view that we have been led 
 to take of political power. 
 
 2. If the Supreme Executive have the right of dissolving 
 Parliament, the power of the latter will be diminished in 
 two ways : it will have less control over the executive, and 
 will itself be more under the control of the electorate, to 
 which appeal may be made at any moment. 
 
 3. Suppose Simple Parliamentary Government with two 
 chambers formally co-ordinate in power. If they are both 
 elected, the share of power belonging to the electorate will 
 not be greatly affected by the duality of the chambers. If 
 
 1 On the other hand, if the electorate had the constitutional right to con- 
 trol by binding resolutions the action of Members of Parliament, it would 
 clearly have the supreme power. But we should hardly call this Parlia- 
 mentary Government.
 
 xxxr SOVEREIGNTY AND ORDER 641 
 
 one chamber were hereditary or co-optative, then its power 
 if the two were really co-ordinate would be equal to that of 
 the electorate and the elected chamber taken together, within 
 the limits imposed on Parliament by the fear of provoking 
 disorder, if these limits could be definitely known ; but as 
 they cannot be definitely known, the elected chamber is 
 likely always to have more weight, whenever the danger of 
 disorder comes into consideration at all, because the physical 
 force of the mass of the people is likely to be on its side. 
 
 But a further consequence follows from the duality 
 of the chambers : the legislative body formed by the two 
 chambers is not " completely capable of corporate action " ; it 
 can only control the Executive by fresh legislation if the two 
 chambers agree, and a minority of the whole body namely, 
 somewhat more than half the members of either chamber 
 suffices to prevent such agreement. Hence the power of 
 the Executive is increased, though precariously : it becomes 
 independent within the limits of the existing law and any 
 further limits imposed by the known opinions of the elec- 
 torate, so long as the two chambers do not agree. 
 
 So far as the two chambers are not really co-ordinate, 
 the distribution of power will be further varied. 
 
 4. Suppose the Executive has an effective absolute veto 
 on legislation and is undismissible by the Legislature : then 
 it has independently of the Legislature the power given it by 
 the existing law, except so far as it is restrained by the fear 
 (1) of provoking disorder, or (2) of the refusal of supplies 
 by the Legislature. The extent of the latter restraint 
 will depend, as we have seen, partly on the completeness 
 of the control over the taxes which the constitution gives 
 to the Legislature, partly on the state of public opinion. If, 
 again, the Executive has a qualified veto, capable of being 
 over-ridden by a two -thirds majority of the Legislature; 
 then its power though it may at any given time be as 
 great as if it had an absolute veto is necessarily more 
 precarious, and fluctuates with the state of parties in 
 Parliament. 
 
 II. Let us now assume that the Legislature is controlled 
 
 2T
 
 642 ELEMENTS OF POLITICS CHAP. 
 
 by a rigid constitution, not capable of being altered except 
 by consent of the electorate. Then two fresh considerations 
 affect the distribution of political power : the mode of 
 altering the constitution, and the mode of interpreting it. 
 If any change supported by a considerable body of citizens 
 must necessarily be brought before the electorate for decision, 
 and might be carried by a bare majority of voters, the 
 electorate would be undoubtedly supreme ; but it would be 
 misleading to call it sovereign, without qualification, unless 
 it could decide all matters by a bare majority; since, in 
 proportion as the majority required for making constitu- 
 tional changes is increased, an increasing share of power is 
 left, though precariously, to the ordinary Legislature. 
 
 If, on the other hand, changes in the constitution can 
 only be initiated by Parliament, the distribution of power 
 between Parliament and the electorate at any given time 
 will be practically the same as if the constitution were 
 flexible, within the limits fixed by the constitution : only, 
 in proportion to the difficulty of formally altering the 
 constitution, both Parliament and the electorate will be 
 restrained by the action of their predecessors. 
 
 In any case, the greater the difficulty of altering the 
 constitution, the more important becomes the question of 
 its interpretation. 
 
 1. If an elected Legislature is the authorised inter- 
 preter, the constitutional restraint on legislation becomes 
 insignificant, so far as the meaning of the rules is am- 
 biguous ; since we may assume that the legislature will 
 decide doubtful points in favour of its own powers and 
 aims. But we cannot assume that an express and clear 
 constitutional rule will be disregarded either by the 
 legislature or by the electorate. Such a perversion of the 
 function of interpretation might no doubt occur ; but it 
 would be disorderly, and would go far to justify the 
 resistance that it would be likely to provoke. 
 
 2. This is still more clear if the interpretation of the 
 constitution is entrusted to an adequately independent 
 judiciary: as the professional function of judges is to
 
 xxxi SOVEREIGNTY AND ORDER 643 
 
 interpret faithfully rules of law, it would be a still more 
 palpable and inexcusable breach of duty on their part to 
 pervert the plain meaning of the constitution. Neverthe- 
 less, so far as the meaning of any constitutional rule is 
 ambiguous, the interpretative function will give them a 
 limited power of practically determining it. 1 
 
 3. If the interpretation of the constitution is entrusted 
 to a body of judges whose conditions of appointment and 
 removal are calculated to impair their independence, the 
 power normally connected with the interpretative function 
 is liable to be partly transferred to the organ or organs that 
 appoint or remove the judges. This transfer, however, is of 
 the kind that I have regarded as essentially disorderly, as 
 it depends on an actual or expected misuse of the power of 
 appointment and removal. 
 
 To carry the analysis further would be easy but tedious : 
 as enough has been said to show clearly the complex and 
 varying manner in which supreme political power tends to 
 be distributed, in the different forms of constitutional 
 government that we have occasion practically to consider. 
 
 7. I have spoken of the power exercised on govern- 
 ment by the fear of violent disorder as belonging to the 
 " mass of the people." In using this phrase I have 
 not intended to imply that different sections of the people 
 are formidable in proportion to their numbers : or that when 
 appeal is made to physical force, the victory is certain to 
 rest with the numerical majority. This seems, indeed, to 
 be vaguely assumed in some arguments for pure demo- 
 cracy; but there is no ground for assuming more than 
 that numbers will prevail other things being equal ; and in 
 fact other things never are equal. Some members of 
 a community always greatly surpass others in fighting 
 force, either through physical strength and endurance, or 
 
 1 Accordingly Mr. Dicey says (Law of the Constitution, p. 165, 4th 
 ed.) that in a confederation like the United States " the bench of judges is 
 not only the guardian but also at a given moment the master of the con- 
 stitution." The phrase, however, seems to me too strong, in view of the 
 considerations above urged (pp. 637, 638).
 
 644 ELEMENTS OF POLITICS CHAP. 
 
 vigour of resolution, or habits of co-operation, or skill 
 due to training and practice, or the power to purchase 
 
 - 7 -.::-=. 
 
 This is indeed recognised by those advocates of de- 
 mocracy who wish to confine the franchise to male adults ; 
 they make a point of urging that if it came to physical 
 strength the women would have to give way, and therefore 
 that a democratic government which might have a large 
 majority of men opposed to it would be wanting in stability. 1 
 There is some force in this argument: but in a civilised 
 society the difference between soldiers and ordinary citizens 
 is practically even more important ; since in any modern 
 state there is more danger of a division of opinion or of 
 iim^ plajmg th mass of the army in opposition to the 
 civilians, than there is of a similar opposition between the 
 mass of men and the mass of women. 
 
 In fact, if in a modern civilised state there is a standing 
 army of considerable size as large as the actual standing 
 armifla of the larger States of the continent of Europe 
 and if the rest of the community are untrained in the 
 np of arms and in military movements, it must be evident 
 that the action of the soldiers will be decisive in any 
 civil conflict, unless a substantial part of the army is op- 
 posed to the rest And owing to the habit of prompt and 
 unquestioning obedience to superiors that is ordinarily 
 maintained in an army and must be maintained if it is to 
 be fffitfant it is not unlikely that the concert of a small 
 number of officers of high position may determine the 
 action of the whole army, or at least of an overwhelming 
 majority of soldiers. 
 
 Hence arises a serious danger to constitutional govern- 
 ment. The best political method for meeting this seems to be 
 a general military training of the citizens: so that there 
 may be always a large proportion of them who, while not 
 forming part of the actual standing army, are capable of 
 being rapidly organised into an effective military force, 
 Otherwise the irresistibility of the army will be liable to 
 1 See Ch*p. XX. f 4, pp. 335, 886.
 
 SOVEREIGNTY AND ORDER 
 
 cause a strong temptation to use it to can the tangled knot 
 of a serious political dispute ; and the habitual consciousness 
 that there exists in the state a power superior both to the 
 law and to the popular will may materially interfere in 
 various ways with the proper working of the constitution. 
 At the same time even universal militarv 
 to be of little avail at a crisis without arms 
 
 while, if we suppose these to be extensively possessed bf 
 ordinary citizens, the danger of violent civil strife would 
 seem to be materially increased. 
 
 8. The question remains, how far we may rely am. 
 constitutional or political morality, under such a form of 
 government as I have gradually sketched out, to obviate 
 the danger of violent disorder. And this leads us once 
 more to the more general question of the right of insurrec- 
 tion against an established government, which we already 
 had occasion partially to consider. 1 A legal or constitu- 
 tional right of insurrection is an absurdity; but, in the 
 present period of political thought, few would contest 
 the moral right to resist and overthrow established rulers 
 in extreme cases of misrule, under most forms of govern- 
 ment ; and, accordingly, I have agmmffl the existence of 
 such a right in earlier chapters. Few, on the other hand, 
 would deny that such attempts at resistance and revolution 
 ought only to take place in extreme cases, when than 
 appear to be no milder means available for remedying 
 either grave practical misgovernment, or persistent deliberate 
 violation of established and important guarantees for good 
 government. In some arguments lor democracy, however, 
 it seems to be implied I do not remember to have seen it 
 expressly asserted that when popular government is faQy 
 developed the right of insurrection mast be held to have 
 become obsolete ; on the grounds that the resistance of any 
 part of a community to the " will of the whole* must be 
 (1) immoral, owing to the indisputably superior right of 
 the whole ; and (2) futile, owing to its irresistibly superior 
 might. In either argument there is an element of sound 
 
 1 Se* Chap. X1Y. 3, Chap, XT. , Cfcap. STL &
 
 646 ELEMENTS OF POLITICS CHAP. 
 
 reason, but in both cases it is palpably inadequate to support 
 the practical conclusion. 1 
 
 Firstly, the community has, in my view, an indisputable 
 right to impose on its members the observance of whatever 
 rules it is conducive to the general happiness that they 
 should be made to observe. And if it is disputed what 
 rules have this quality, there is a certain presumption, other 
 things being equal, that the regulations preferred by the 
 majority are more likely to be conducive to the general 
 happiness than those preferred by the minority ; since, so 
 far as each knows best and is most concerned to provide 
 what tends to his own happiness, the alternative preferred 
 by the larger number may, ceteris paribus, be expected to be 
 productive of the larger amount of happiness. But where 
 parties are nearly evenly divided, this presumption is 
 obviously very slight ; and even if the majority is more 
 decided, the presumption may easily be overborne in parti- 
 cular cases by other considerations. For those who form 
 the minority may possess superior knowledge and foresight 
 of consequences ; or the damage done to them by the regula- 
 tions preferred by the majority may decidedly outweigh 
 the gain to the latter ; or, for some other reason, their immedi- 
 ate or apparent interests may be more likely to coincide 
 with the real ultimate interests of the whole community 
 than the immediate or apparent interests of the majority. 
 
 On one or other of these grounds the evils of insurrection 
 may reasonably be thought to be outweighed by the evils of 
 submission, when the question at issue is of vital import- 
 ance, if the insurgents have a fair chance of maintaining an 
 equal fight, or even sometimes if they can only give trouble 
 enough to alarm the majority. Even the former supposition 
 is not violently improbable, for, as we have already seen, the 
 presumption that the preponderance of physical force will be 
 
 1 In the discussion that follows I omit, for simplicity, the consideration of 
 cases in which, owing to a conflict among the recognised organs of supreme 
 government, it is doubtful which of the contending parties really represents 
 the established constitutional order. But we can hardly hope that the most 
 carefully devised constitutional arrangements will altogether prevent conflicts 
 of this kind.
 
 xxxi SO VEREIGNTY AND ORDER 647 
 
 on the side of the majority is almost as slight as the pre- 
 sumption that it will be in the right. It may, indeed, be 
 said that an insurrection against a government supported by 
 an organised democratic majority is, on the whole, likely to 
 be more disastrous in its effects than an insurrection against 
 a tyrannical monarchy or oligarchy ; since the latter may be 
 brief and bloodless, owing to the manifestation of over- 
 whelming physical force opposed to the government, whereas 
 in the former case the rebels can at best expect a balanced 
 conflict. 1 But granting this, the conflict, though balanced, 
 need not be prolonged ; for where there are solid reasons for 
 insurrection, the manifest determination of the minority to 
 fight may dispose the majority to a reasonable compromise ; 
 since they may easily be less eager to oppress than the others 
 to escape oppression. For this latter reason an insurrection 
 may sometimes induce redress of grievances, even when the 
 insurgents are clearly weaker in physical force ; since it 
 may bring home to the majority the intensity of the sense 
 of injury aroused by their actions. 2 For similar reasons, 
 again, a conflict in prospect may be anticipated by a 
 compromise ; in short, the fear of provoking disorder may 
 be a salutary check on the persons constitutionally invested 
 with supreme power under a democratic as under other 
 forms of government. 
 
 I conceive, then, that a moral right of insurrection must 
 be held to exist in the most popularly governed community. 
 In saying this I do not mean to imply that this violent 
 remedy ought to be, or is likely to be, brought into opera- 
 
 1 This difference would not hold universally, even apart from the possi- 
 bility of compromise ; since, on the one hand, habits of obedience, regard for 
 legitimacy, and aversion to disorder, would often secure strong support even 
 for a tyrannical and unpopular monarchy and oligarchy ; and, on the other 
 hand, when there is a large standing army, a democratic government may be 
 briefly and almost bloodlessly overthrown by a military combination. But 
 in the latter case the resulting government is not generally likely to be stable 
 or beneficent ; so that the bad consequences of the conflict are likely to be 
 grave and profound, even though the conflict is brief. 
 
 2 There is, I conceive, no presumption that superiority in intensity of con- 
 viction will be found on the side of the majority ; the presumption is rather 
 the other way.
 
 648 ELEMENTS OF POLITICS CHAP. 
 
 tion frequently in a modern civilised society. In such a 
 society, the interest of the citizens generally in the mainten- 
 ance of order is so great, that the victims of democratic 
 oppression will usually find resistance hopeless ; they will 
 have to submit or depart with the best terms that they can 
 obtain from the triumphant majority. Still I think it 
 important to dispel the illusion that any form of govern- 
 ment can ever give a complete security against civil war. 
 Such a security, if attained, must rest on a moral rather than 
 a political basis ; it must be maintained by the moderation 
 and justice, the comprehensive sympathies and enlightened 
 public spirit of the better citizens, keeping within bounds 
 the fanaticism of sects, the cupidities of classes, and the 
 violence of victorious partisanship ; it cannot be found in 
 any indisputable right of a numerical majority of persons 
 inhabiting any part of the earth's surface, to be obeyed by 
 the minority who live within the same district. 
 
 Indeed, if the " divine right of majorities " was ever 
 accepted as a rational basis for political construction, its 
 application could hardly be made to depend on the estab- 
 lished boundaries of actual states, in the determination of 
 which historical accidents have played so large a part ; 
 while if it is applied without regard to these established 
 boundaries, it would lead naturally to an indefinite dis- 
 integration of political societies ; since a faction that was 
 in a minority in the whole state would probably be in a 
 majority in some districts, and might accordingly, on this 
 principle, claim to be governed according to its wishes in 
 these districts. And, in fact, some of those who hold that 
 a government, to be legitimate, must rest on the consent of 
 the governed, appear not to shrink from drawing this infer- 
 ence ; they appear to qualify the right of the majority of 
 members of a state to rule by allowing the claim of a 
 minority that suffers from the exercise of this right to secede 
 and form a new state, when it is in a majority in a con- 
 tinuous portion of its old state's territory. 1 
 
 1 The right of disruption was partially considered in Chap. XIV. 3, but 
 I there deferred the final discussion of it, because it seemed to me then
 
 Xxxi SO VEREIGNTY AND ORDER 649 
 
 I have already suggested that a democratic state will 
 naturally be disposed to concede local autonomy to its parts, 
 to the utmost extent compatible with the interests of the 
 whole ; and I conceive that there are cases in which the 
 true interests of the whole may be promoted by disruption. 
 For instance, where two portions of a state's territory are 
 separated by a long interval of sea. or other physical 
 obstacles, from any very active intercommunication, and 
 when, from differences of race or religion, past history or 
 present social conditions, their respective inhabitants have 
 divergent needs and demands in respect of legislation and 
 other governmental interference, it may easily be inexpedient 
 that they should have a common government for internal 
 affairs ; while if, at the same time, their external relations, 
 apart from their union, would be very different, it is quite 
 possible that each part may lose more through the risk of 
 implication in the other's quarrels, than it is likely to gain 
 from the aid of its military force. Under such conditions 
 as these, it is not to be desired that any sentiment of 
 historical patriotism, or any pride in the national owner- 
 ship of an extensive territory, should permanently prevent 
 a, peaceful dissolution of the incoherent whole into its 
 natural parts. But to allow a general right of secession on 
 the ground of its conduciveness to the interests of the 
 seceders alone, would be inconsistent with the fundamental 
 principles of political reasoning assumed throughout this 
 treatise. And I may observe that if such a right be once 
 admitted, I see no reason why its application should be 
 limited by any consideration of the size or continuity of 
 the territory in which the seceders were in a majority ; 
 consistency seems to require us to allow the whole com- 
 munity to be resolved into a congeries of separately governed 
 groups, each member being free to select his own political 
 government, without changing his residence, just as he is 
 now free to select the ecclesiastical government that he will 
 
 premature to explain exactly in what sense and with what qualifications I 
 accept the proposition that the legitimacy of government depends on the 
 consent of the governed.
 
 650 ELEMENTS OF POLITICS CHAP, xxxi 
 
 obey. For though the secession of any such group would 
 inflict extreme inconvenience on the rest, it would often 
 not inflict more inconvenience than the separation of a 
 continuous portion of territory. E.g. if, in the time of the 
 Commune, a separation of Paris from France had been 
 peacefully decreed by a majority of Communards, it would 
 have been as great a blow to the national existence of 
 France as if the Protestants throughout the country had 
 been allowed to live under their own government. 
 
 The suggestion just made may seem too absurd; but 
 principles are often best tested by extreme cases. It is 
 important to see clearly that a form of government which 
 shall enable every one to " obey himself alone " is chimerical. 
 The coercion, by physical force in the last resort, of well- 
 intentioned adults, is an evil which we cannot hope to 
 eliminate by any constitutional reforms ; though to diminish 
 it without sacrificing other benefits is doubtless among the 
 most legitimate and important aims which constitutional 
 reformers can propose to themselves.
 
 APPENDIX (A) 
 
 ON AUSTIN'S THEORY OF SOVEREIGNTY 
 
 IN Chap. II. of this book and the concluding chapter, taken 
 together, I have put forward a view of the relation of Law to 
 Government, and of Sovereignty or supreme political power, 
 materially different from that which has for more than a genera- 
 tion been widely accepted in England, under the influence of 
 John Austin. In the first edition I included in Chap. II. a critical 
 account of Austin's doctrine : but in revising the book for a 
 second edition it seemed to me a mistake to introduce so much 
 critical matter at so early a stage of the discussion. I therefore 
 determined to transfer the main part of it to this Appendix, and 
 at the same time make it somewhat more complete. 
 
 Austin's view may be briefly stated thus : Every Positive 
 Law of any State is a general command to do or abstain from 
 certain acts, which is issued directly or indirectly by the Sovereign 
 of the State to a person or persons subject to his authority : the 
 Sovereign being that determinate person, or body of persons 
 combined in a certain manner, that the bulk of the members 
 of the State habitually obey, provided that he or it does not 
 habitually obey any one else. It is implied in the conception 
 of Sovereign that the community that has a Sovereign is inde- 
 pendent in the sense that its government does not habitually 
 obey a foreign power ; and orderly in the sense that the bulk 
 of the community habitually obey the laws. 
 
 From this definition together with the assumption that 
 facts exist corresponding to the definition two important 
 consequences are inferred : 
 
 (a) The power of the Sovereign cannot be legally limited 
 for, obviously, the Sovereign cannot be coerced to act in a 
 certain way by any command of his own. 
 
 (6) Sovereignty cannot, strictly speaking, be legally divided 
 between two or more persons, or bodies of persons, acting 
 
 651
 
 652 ELEMENTS OF POLITICS 
 
 separately : because any such persons or bodies must have, ex 
 hypothesi, powers legally limited in certain directions there are 
 certain things which each of them is by law prevented from 
 doing : but, if so, they are in habitual obedience to the authority 
 that laid down the law, and it is this latter that is the real 
 Sovereign. 
 
 E.g. in a federal state, such as the United States of America, 
 sovereignty, strictly speaking, does not belong to the central 
 government nor to the separate governments of the federated 
 states ; but to the body, whatever it may be, that is recognised 
 as having authority to alter the conditions of federation. 
 
 Now this view of the relation of law to government does, no 
 doubt, correspond prima facie to the facts existing in such a 
 community as England is at the present day. The great bulk 
 of Englishmen habitually obey the general directions as to their 
 external conduct that are contained in Acts of Parliament : and 
 though an important part of the laws applied and occasionally 
 modified by the decisions of our judges is not derived from 
 Acts of Parliament, still, the interference of Parliament by new 
 statutes has long been so active in all departments of our law, 
 that we may, without a very violent fiction, regard it as 
 approving of whatever it does not abrogate or modify, and as 
 approving the action of the judges in occasionally modifying 
 law : and we incur at least no practically important error in 
 saying, that any new laws that Parliament chose to lay down 
 would be unquestionably adopted by our law-courts as the basis 
 of judicial decisions. But if we regard Austin's theory as 
 intended to represent the relation of what has been commonly 
 recognised as Law to Government in human societies always 
 and everywhere, it seems to me quite unacceptable. In arguing 
 this it is not necessary to take into account states of society 
 in which, as Maine points out, 1 the social order is maintained 
 by customary rules, to which obedience is secured by forces 
 other than political : i.e. by "partly opinion, partly superstition, 
 but to a far greater extent an instinct almost as blind and 
 unconscious as that which produces some of the movements of 
 our bodies." Even if we only consider communities, in which 
 the " law of the land " is administered by judges whose penalties 
 constitute the most effective motive to its observance, it still 
 does not follow that such law is generally conceived as a body 
 of rules depending for its force on the approval of the supreme 
 legislature. Thus at an earlier period of our own history law 
 was to an important extent conceived both by governors and 
 1 Maine, Early History of Institutions, Lee. xiii. p. 392.
 
 APPENDIX (A) 653 
 
 governed as a subject of science, capable of being learnt by 
 special study, but not capable of being altered by the mere 
 arbitrary will of government, any more than the principles or 
 conclusions of mathematics. 
 
 During such periods in the history of progressive communi- 
 ties important changes are continually taking place in law : but 
 they are not mainly introduced in the way of conscious legisla- 
 tion, but by the decisions of judges either (1) professing to 
 interpret pre-existing rules of law, but really modifying them in 
 order to adapt them to new circumstances, or (2) overruling 
 them in conformity to a higher law as apprehended by the 
 conscience of an enlightened and equitable judge. And I 
 cannot admit that, as Austin and his followers contend, we may 
 even in such periods legitimately regard the new elements of 
 law as commands of the Sovereign, because we may fairly 
 suppose the Sovereign to command whatever rules he allows his 
 subordinates to apply. For (1) such a statement appears to me 
 a misleading fiction, if it is clear that the supreme government 
 was itself under the dominion of the ideas just described, and 
 regarded law as something with which, to a great extent, it was 
 beyond its province to interfere. And (2) even supposing that, 
 in such periods, the supreme government would have been 
 obeyed without a struggle, if it had gone beyond its recognised 
 province and commanded what was contrary to the principles 
 of civil justice generally accepted by judges and legal experts ; 
 it still does not follow that such commands could at the time 
 have been regarded as Laws. As Maine aptly reminds us " the 
 tyrant in a Greek city often satisfied every one of Austin's 
 tests of sovereignty ; yet it was part of the accepted definition 
 of a tyrant that he ' subverted the laws,' " whereas the true 
 monarch governed according to law: and this distinction between 
 the tyrant and the true monarch was generally accepted by 
 modern European thought in its earliest stage. But (3) we 
 are not warranted in assuming that any commands of the (so- 
 called) Sovereign would have been obeyed, even by its official 
 subordinates. In what Austin and his followers say of "habitual 
 obedience," it seems often to be tacitly implied that such 
 obedience is unconditional, or at least not definitely limited by 
 generally recognised conditions : but as a matter of fact it has 
 been so limited in European countries during the greater part 
 of their history, and in most important ways. For instance, it 
 is not only a true statement of the political ideas prevalent 
 during the Middle Ages, to say that no governing individual or 
 body, from the Emperor downwards, had more than limited
 
 654 ELEMENTS OF POLITICS 
 
 powers : it was continually proved by experience to be a true 
 statement of political fads also, since attempts made by govern- 
 ing persons to exceed their powers were frequently resisted as 
 illegitimate. And much later than the Middle Ages, in Catholic 
 countries, the power of secular governments to interfere in the 
 departments of civil conduct which the Church claimed to 
 regulate was most effectually limited. It was commonly 
 recognised that the spiritual and temporal power had respec- 
 tively different spheres, and that each was supreme within its 
 own sphere : and though the boundary between the two spheres 
 was somewhat vague and continually disputed, there seems to 
 have been always a point beyond which any attempted encroach- 
 ment would have met with successful resistance, the ecclesi- 
 astical courts would have refused to recognise the validity of 
 the secular law or edict : the bulk of the laity would have 
 supported them in their refusal ; and the secular government 
 would have had to give way. But if it be admitted that the 
 obedience of subjects may be actually limited by distinctly 
 recognised conditions, the proposition that the power of the 
 Sovereign is not legally limited becomes insignificant : since it 
 merely means that it is not limited by the Sovereign's own 
 commands which no one can ever have supposed it to be. 
 
 It may be said, however, that in the cases to which I have 
 referred, society was in a partially anarchical and disorderly 
 condition : and that when, in the course of historical develop- 
 ment, the stage of political order has been attained, Austin's 
 analysis is found to apply: and that speaking broadly and 
 allowing (as Austin's phrases do) for the imperfections of all 
 human institutions this stage of orderliness has now been 
 reached in modern communities generally. And it is certainly 
 true that in most modern communities there is a determinate 
 complex body of persons, which we may call the supreme 
 legislature, recognised as having authority to make any change 
 that it may think fit in the established law of the state ; and 
 that whatever laws it may lay down are habitually obeyed by 
 the bulk of the members of the community. But it still seems 
 to me seriously misleading to say that the power of this 
 legislature has "no legal limits in modern states." Let 
 us first take the case of a community where there are con- 
 stitutional laws limiting legislative competence of the ordinary 
 legislature. Here, in Austin's view, it is not the ordinary 
 legislature that is sovereign, but the complex body that has 
 the power of altering the Constitution. Now it is doubtless 
 true that the power of this complex body to make laws is in
 
 APPENDIX (A) 655 
 
 a sense legally unlimited, i.e. it is not circumscribed by any 
 legal rules ; but in another sense it has legal limits of great 
 importance, since it is prevented from acting except under 
 certain conditions by the legal rules determining its structure 
 and procedure, these rules being in most cases such as to prevent 
 any constitutional change unless there is a very decided pre- 
 ponderance of opinion in its favour. In Chap. II. I illustrated 
 this latter kind of limitation by the example of the United 
 States of North America : but I might equally well have selected 
 any one of several European States. Let us take (e.g.) the 
 Constitution of Belgium. A Belgian's rights to worship or not 
 worship as he pleases, to start a school or a newspaper, to 
 assemble without arms (if not in the open air), and the very 
 important right of not being deprived of his property without 
 compensation, are guaranteed by the Constitution, and cannot 
 legitimately be impaired by ordinary legislation. The Con- 
 stitution itself, however, is alterable by a process determined 
 in the Constitution itself, of which the main points are (1) that 
 no constitutional change can be made without a general election 
 intervening between its commencement and its conclusion, so 
 that two successive pairs of chambers must concur in it; and 
 (2) that when the change is finally passed, two-thirds of the 
 members of each chamber must be present, and two-thirds 
 of those present must vote for the change. Now surely it 
 is misleading to say that there is in Belgium a sovereign 
 with power legally unlimited, when the process of changing 
 constitutional laws is hampered by these elaborate legal 
 conditions ! 
 
 The assertion is at first sight more plausible in such a case 
 as that of England, where the ordinary process of legislation is 
 also the process by which the Constitution is changed. Here, 
 however, there is another great difficulty in the way of the 
 Austinian theory, arising from the elective character of the 
 most important portion of the supreme legislature. 1 For 
 simplicity let us suppose that the aspirations of a democratic 
 section of English politicians have been realised, and that the 
 power of Parliament is concentrated in the House of Commons 
 the House of Lords as well as the Crown being reduced to a 
 nullity. Where then in England is the sovereign with power 
 free from " legal limitation " 1 Is it the House of Commons, 
 or is it the body of enfranchised Englishmen that periodically 
 elects its members 1 Austin shrinks from the paradox of affinn- 
 
 1 This difficulty also exists in the case before discussed, but it was not 
 necessary for my argument to refer to it.
 
 656 ELEMENTS OF POLITICS 
 
 ing the former, which would compel him to view the govern- 
 ment of England as an extremely narrow oligarchy : he cannot 
 consistently affirm the latter, since it is obvious that no command 
 of the electorate as such has any legal force : while at the same 
 time he is precluded by his conception of sovereignty from 
 adopting the view that I have put forward in the concluding 
 chapter that supreme political power, in the case supposed, 
 is shared between Parliament and the electorate. Consequently 
 he is in an embarrassment which reveals itself in the following 
 remarkable series of contradictory statements (Theory of Juris- 
 prudence, vol. i. ch. vi. pp. 200-204). 
 
 " In our own country, one component part of the sovereign 
 or supreme body is the numerous body of the commons. . . . 
 The commons exercise through representatives the whole of 
 their sovereign powers ; or they exercise through representatives 
 the whole of their sovereign powers, excepting their sovereign 
 power of electing and appointing representatives. . . . When a 
 sovereign body exercises through representatives the whole of 
 its sovereign powers, it may delegate those its powers to those 
 its representatives 'in either of two modes,' that is, either 
 'subject to a trust or trusts,' or 'absolutely and uncondition- 
 ally.' . . . The commons delegate their powers to the members 
 of the commons' house in the second of the above-mentioned 
 modes : so that during the parliament ' the sovereignty is 
 possessed by the king and peers, with the members of the 
 commons' house, and not by the king and peers with the 
 delegating body of the commons ' ; it is only when parliament 
 is dissolved that the ' delegated share in the sovereignty reverts 
 to that delegating body.' Hence if the commons were sovereign 
 without the king and the peers, their present representatives 
 in Parliament would be the sovereign in effect or would possess 
 the entire sovereignty free from trust or obligation. The 
 powers of the commons are delegated so absolutely to the 
 members of the commons' house that this representative 
 assembly might concur with the king and the peers in defeat- 
 ing the principal ends for which it is elected or appointed. It 
 might concur, for instance, in making a statute which would 
 . . . annihilate completely the actual constitution of the govern- 
 ment, by transferring the sovereignty to the king or the peers 
 from the tripartite body wherein it resides at present." 
 
 That is, the electorate is a component part of the sovereign, 
 and its election of representatives is only the adoption of a 
 certain mode of exercising its powers : at the same time, 
 Parliament possesses sovereignty so completely that it can if
 
 APPENDIX (A) 657 
 
 it likes deprive the electorate altogether of its electoral 
 function ! 
 
 But this is not all. He goes on to say that though actually 
 the commons delegate their powers absolutely or unconditionally, 
 "it is clear that they might delegate them subject to a trust or 
 trusts." . . . "Where such a trust is imposed by a sovereign 
 or supreme body," it is he goes on to say "enforced by 
 legal or by merely moral sanctions. The representative body 
 is bound by a positive law or laws ; or it is merely bound by 
 a fear that it may offend the bulk of the community, in case 
 it shall break the engagement which it has contracted." The 
 distinction is clear : but it would seem to be irrelevant to the 
 present discussion, as we have just been told that Parliament 
 possesses sovereignty " free from trust." However, much to 
 our astonishment, Austin calmly adds : " I commonly suppose 
 that the parliament for the time being is possessed of the 
 sovereignty. . . . But, speaking accurately, the members of the 
 commons' house are merely trustees for the body by which they 
 are elected or appointed ; and consequently the sovereignty 
 always resides in the king and the peers, with the electoral 
 body of the commons." He goes on to say that such a trust is 
 implied in the notions of delegation and representation : since 
 "it is absurd to suppose that the delegating empowers the 
 representative party to defeat or abandon any of the purposes 
 for which the latter is appointed." 
 
 It would seem, then, that supposing the peers and the 
 Crown out of the way the electorate is sovereign, and at the 
 same time the House of Commons is sovereign ; that sovereignty 
 always resides in the electorate, and at the same time only 
 reverts to it when Parliament is dissolved ; that the House of 
 Commons possesses the entire sovereignty free from trust or 
 obligation, and at the same time the members of the House of 
 Commons are merely trustees for the electorate. This is 
 certainly an extraordinary combination of statements to be 
 made by a writer who always affects elaborate precision of 
 thought and expression ! 
 
 If, indeed, in saying that the House of Commons "might 
 concur with the king and the peers " in destroying the repre- 
 sentative element of Parliament, Austin means to imply that 
 Parliament could pass a statute to this effect, against the wish 
 of the electorate, and yet retain the "habitual obedience" of 
 Englishmen then I can see no valid ground for his hesitation 
 to attribute sovereignty to Parliament. If there is really reason 
 to believe that, after such a transformation of their Grovern- 
 
 2u
 
 658 ELEMENTS OF POLITICS 
 
 ment, Englishmen would merely grumble and submit, and go 
 on paying their taxes, Rousseau's assertion that the English 
 people is only free at election times would be difficult to con- 
 trovert, since even this transient freedom would be only enjoyed 
 by favour of king, lords, and 670 oligarchs euphemistically 
 called "commons." But if, as I venture to hold, it is more 
 probable that the Government that forced this transformation 
 on an unwilling people would rapidly cease to be a government 
 through a general refusal of obedience, then the statement that 
 the power of Parliament is " legally unlimited " is not exactly 
 untrue but trivial and insignificant : since the habitual obedi- 
 ence on which this power depends is limited by a definitely 
 understood condition, the recognition of which is as habitual 
 as the obedience. 
 
 And, if it be admitted that the English Parliament prac- 
 tically " cannot " deprive the electorate of their electoral rights, 
 further limitations of this power, involved in the exercise of 
 their practically indefeasible right, must be admitted also. 
 These cannot, indeed, be stated with perfect exactness, since 
 they depend on the efficacy of the " fear of dismissal," regarded 
 as a motive influencing legislators ; and this is very different 
 with different legislators and different constituencies. It would 
 be going too far to say that Members of Parliament in England 
 are in " habitual obedience " to their constituents. But it 
 would be, on the whole, less misleading to say this than to 
 make no distinction between the effect of this " fear of dis- 
 missal " and that of the fear of disapproval and dislike, to which 
 the most absolute despot is exposed. My friend Mr. Dicey 
 has tried (Law of the Constitution, chap, i.) to represent the facts 
 by a dual application of the term " sovereign " saying that 
 Parliament is the "legal sovereign," and the electorate the 
 " political sovereign " ; and if it is desired to retain the word 
 "sovereign" in legal exposition and discussion, and at the same 
 time to use it in a fruitful analysis of political facts, I know no 
 better device than Mr. Dicey's for avoiding the embarrassments 
 in which Austin is entangled. But it must be observed that 
 this new view of a double sovereign differs essentially from the 
 traditional doctrine, handed down to Austin from Bodin and 
 Hobbes, since it was a cardinal point in that doctrine that 
 there could be only one sovereign in a State : and the con- 
 venience of using the same term to express two such very 
 different kinds of power seems to me highly dubious.
 
 INDEX 
 
 Aborigines and Colonists, 322-8 
 Active consent of citizens in Govern- 
 ment, 610-3 ; 615 
 Administrative Courts, 505-7 
 Aliens : admission of, 308-10 
 
 : treatment of, 247-251 
 Animals : property in, 74-5 
 Annoyance : mental, protection from, 
 
 65-6 
 
 Appeal : right of, 502-4 
 Appointment of Government officials, 
 
 415-8 
 Appropriation, 68-70 
 
 of animals, 74-5 
 
 of land, 72-4 ; 77 
 
 of material things, 70-2 
 
 of minerals, 75-7 
 
 of vegetable products, 74 
 Arbitration, 263-6 ; 296-7 
 Areas for Local Government, 515-6 
 Aristocracy, 608 
 Aristocratic Element in Representative 
 
 Government, 616-9 
 
 Aristotle's Classification of Govern- 
 ments, 604-6 
 Armies : standing, 644-5 
 Assembly, Legislative : size of, 405-6 
 Associations, Religious : bequests to, 
 587-8 
 
 privileges of, 585-6 
 
 : relation to State, 212-6 ; 583-8 
 
 : subventions to, 586 
 
 : Voluntary : moral coercion by, 
 577-581 
 
 : powers of, 573-4 
 
 : quasi-government of, 572-3 
 
 : relation to Government, 572-588 
 Austin : his conception of Government 
 and Law, 27, 29, and Appendix 
 
 : on Sovereignty, Appendix 
 
 Bagehot : on Parliamentary Heads of 
 
 Departments, 446 
 : on Presidential government, 451-3 
 
 Bain : on Logic of Politics, 18-9 
 
 Ballot, 382 
 
 Bankruptcy, 93 ; 157 ; 383, note 
 
 Basis of International Duty, 237-246 
 
 Belgium : constitution of, Appendix, 
 655 
 
 Belligerents : mutual duties of, 268- 
 273 
 relations to neutrals, 273-7 
 
 Bentham : fundamental propositions, 
 11-12 
 
 on humiliating punishments, 121 
 on intestate inheritance, 105-8 
 on limitation of bequest, 104 
 principle of utilitarian politics, 609 
 
 Bequest : late growth of, 99 
 limitations of, 100-5 
 right of, 52-3 ; 70 ; 98-100 
 to Religious Associations, 587-8 
 
 Blackstone : on Law of Nature, 22 
 
 Blockade, 276 
 
 Bluntschli : on ultimate end of govern- 
 ment, 39 
 : on trial by Jury, 494 
 
 Boycotting, 578-581 
 
 Breach of Contract, 61 
 
 Bribery, 380-1 
 
 : of Legislators by Executive, 462-4 
 
 Cabinet, 422-7 ; 435-6 ; 443-4 
 
 : Government : defects of, 444-7 
 Censure: moral, 209-211 
 Central and Local Government, 364 
 Centralisation : advantages of, 523-4 
 Chambers, Legislative, number of, 466-7 
 
 : different functions of, 478-9 
 Changes in International Law, 293-6 
 
 : in Taxation, 197 
 Children : care of, 56 ; 140-1 
 Choice of Representatives, 557-8 
 Churches : bequests to, 587-8 
 
 : privileges of, 585-6 
 
 : relation to State, 212-6 ; 583-8 
 
 : subventions to, 586 
 
 659
 
 66o 
 
 ELEMENTS OF POLITICS 
 
 Citizens, 387-8 
 
 : active consent in Government, 
 584-6 ; 589 
 
 : political equality of, 587-9 
 Civil actions, 499 
 
 and constitutional rights, 35-7 
 
 Service Appointments : selection for, 
 415-8 
 
 : tenure of, 420-2 
 
 war : intervention of foreign States 
 in, 258-262 
 
 : regulation of, 277-9 
 Classification of Governments, 604-622 
 Codification of Laws, 343 
 Coercion : moral, 64-6 ; 577-581 
 Cognoscibility of Laws, 337-340 
 Collective ownership, 96-7 
 Collectivism, 158-9 
 Colonies : Government of, 546-550 
 Colonisation, 314-5 ; 319-322 
 Colonists and Aborigines, 322-8 ; 549- 
 
 550 
 Committees of Legislative Assembly, 
 
 466 
 Comparison of Greek City-State and 
 
 West-European State, 622 
 Compensation, for private wrong, 48 ; 
 114-7 ; 120-2 
 
 : for breach of contract, 94 ; 120-1 
 
 : for Government interference, 187- 
 
 199 
 
 Competitive Examination, 416-7 
 Compulsory Military Service, 173-4 ; 
 644-5 
 
 cession of territory, 280-283 
 
 purchase of land, 191-3 
 Confederation of States : characteristics 
 of, 537 
 
 : compared with Federal State, 538-9 
 
 : transitional nature of, 544 
 Conquest : expansion of territory by, 
 
 310-313 
 
 Constituencies : relations to Repre- 
 sentatives, 553-8 
 Constitution : flexible, 561 
 
 : modifications of, 559-562 
 
 : of Belgium, Appendix, 655 
 
 : perversions of, 633-6 
 
 : rigid, 562-9 
 Constitutional Freedom, 46 ; 375-6 
 
 Law, 25-9 
 
 Monarchy, 427-8 ; 437-442 ; 447-451 
 Consuls, 334 
 Contraband of War, 274 
 Contract 83-5 
 
 and limited liability, 97 
 
 : breach of, 61 ; 93-5 
 
 : conditions of enforcement, 85-90 
 
 Contract : importance of, 82-3 
 
 : limitations of enforcement, 94-5 ; 
 
 157 
 : one-sided, 95-6 
 
 Contracts between States, 257-8 ; 280- 
 284 
 
 Control of Police, 520 
 
 Copyrights, 51 ; 78-9 ; 157 
 
 Councils : consultative, 419-420 
 
 Court of Appeal, 562-3 
 
 Crime : punishment of, 110-4 ; 122-5 
 
 Criminal actions, 499-502 
 
 Criminals : extradition of, 250-1 
 
 Criticism of Government, 570-1 
 
 Damages, 114-122 
 
 Dangers of over-centralisation, 512-3 
 Defects of Cabinet Government, 444-7 
 Degressive taxation, 182 
 Delegates, 554-6 
 Demagogy, 380-1 
 
 Democracy : fundamental principles of 
 610-6 
 
 : interpretation of, 609-10 
 Democratic element in Representative 
 
 Government, 616-9 
 Departments of Executive, 408-415 
 
 : heads of, 419-20 ; 422-6 ; 433-4 
 Dependencies, 531 ; 544-550 
 Development of Law, 202-4 
 Disruption : right of, 226-9 ; 648-650 
 Dissolution of Parliament, 434-6 ; 439- 
 
 441 ; 454-5 
 
 Distribution of political power, 628- 
 638 
 
 of voting power (unequal), 388-394 
 Divergencies in laws, local, 233-6 
 Division of functions between Central 
 and Local Governments, 513-525 
 
 of Politics, 15-7 
 Divisions, electoral, 394-9 
 Dominion over sea, 252-3 
 Dual party organisation, 593-603 
 Duration of Parliaments, 556-7 
 
 Educative effects of Representative 
 
 Government, 374-7 
 Election, indirect, 403-4 ; 475 
 Electoral divisions, 394-9 
 Electorate : constitution of, 383-8 
 Eligibility for Legislature, 400-1 
 Emigration, 315-322 
 End of Government, 38-9 
 Endowment of Churches, 586 
 Enforcement of Contract, 85-95 ; 157 
 English Constitutional Monarchy, 
 
 426-8; 432-442 
 Equalisation of opportunities, 162-3
 
 INDEX 
 
 661 
 
 Equality (political) of citizens, 613-6 
 of taxation, 179-184 
 
 Ethical Socialism, 42 
 
 Executive : appointment of, 415-8 ; 
 422-6 ; 437-443 ; 447-454 
 departments of, 408-415 
 duties of, 334-5 ; 345-7 
 in foreign affairs, 352-3 ; 461-2 
 officials of, 412-8 ; 462-3 
 relation to Justiciary, 355; 358-360 
 relation to Legislature, 347-354 ; 
 360-2 
 Supreme, 422-6 ; 437-454 
 
 and taxation, 335-6 ; 449 ; 459 
 : legislative functions of, 455-7 
 : extra-legal action of, 457 
 : ordinances of, 456 
 : relation to Legislature, 429-464 ; 
 565 
 
 Expansion of territory by conquest, 
 310-13 
 
 Expatriation, 225 ; 231 ; 247 
 
 Extradition, 250-1 
 
 Faction, 590 ; 598-600 
 Family rights and duties, 56-8 
 
 and bequest, 100-1 
 Federalism : advantages of, 542-3 
 disadvantages of, 543-4 
 transitional nature of, 544 
 Federalist, The : on Faction, 590 
 Federal State : characteristics of, 532-7 
 compared with Confederation of 
 States, 538-9 
 
 compared with Unitary State, 532-7 
 origin of, 531-2 ; 542 
 relation of parts to whole in, 532-7 ; 
 541 
 
 Union : reasons for forming, 542-3 
 Federation of West European States, 
 
 218-9 
 
 Female Suffrage, 385-7 ; 644 
 Fiduciary ownership, 101-2 
 Financial department of Government : 
 
 necessity for, 335-6 ; 349-350 
 Flexible Constitution, 561-2 
 Foreign affairs : Executive in, 352-3 ; 
 
 461-2 
 
 : influence of legislature on, 461-2 
 Formation of parties, 591-5 
 Franchise, restrictions of, 378-387 
 Freedom and Utility, 45-55 
 
 : as ultimate end of Government, 
 
 44-55 
 
 : civil and constitutional, 46 ; 375-6 
 of Press, 569-570 
 of Speech, 570-1 
 Free Trade, 303-8 
 
 French Law of Bequest, 100-1 
 Functions of Senate and House of 
 
 Representatives, 469-473 ; 478-480 
 Fusion of Aristocracy and Democracy 
 
 in Representative Government, 616-8 
 
 General principles of Legislation, 33- 
 
 43 
 German Constitutional Monarchy, 
 
 427-8; 447-451 
 Gerrymandering, 399 
 Goodwill of a business, 80 
 Government : active consent of citizens 
 
 in, 610-3 ; 615 
 and Churches, 212-6 ; 583-8 
 and Law, 19-30 ; 33-5 
 and teaching of morality, 212-5 
 criticism of, 570-1 
 end of, 37-9 
 of colonies, 546-550 
 ownership of land by, 175 
 paternal, 41 ; 132-142 
 races without, 2-3 
 relation to Voluntary Associations, 
 572-588 
 sectional, 528-9 
 
 Governmental interference, chaps, iv.-x. 
 individualistic, 40-3 ; 55-136 
 paternal, 136-142 
 socialistic, 42 ; 143-168 
 Governments : classification of, 604-622 
 Greek City-State and West European 
 State compared, 622 
 
 Happiness : as end of Government, 
 
 38-9 
 Hare : on representation of minorities, 
 
 394-6 ; 398 
 Heads of Departments, 419-420 ; 422-6 ; 
 
 433-4 
 
 Hereditary element in Parliamentary 
 Government, 476-7 ; 619-622 
 
 : Monarch, 427-8; 437-442; 447-451 
 
 : Senate, 476-7 
 
 Hobbes : on Civil Freedom, 45 
 Hume : on object of Government, 17 
 
 Incidence of Taxation, 184-6 
 Increase of population, 317-8 
 Indigence : relief of, 164-7 
 Indirect Election, 403-4 ; 475 
 
 Taxation, 183-5 
 Indirectly Individualistic Interference, 
 
 129-136 
 Individualism : assumptions of, 144-5 
 
 : definition of, 42-7 ; 58 
 
 : examination of, 44-58
 
 662 
 
 ELEMENTS OF POLITICS 
 
 Individualism : theoretical limitations 
 
 of, 136-7 ; 146-151 ; 164 
 Individualistic Minimum, 55 ; 59-60 
 Inheritance, 98-108 
 
 : taxation of, 185-6 
 Initiative : right of, 554 
 Injury : physical, protection from, 47 ; 
 
 60 
 
 Insurrection, right of, 645-8 
 Interference, Governmental : principles 
 of, compared, 40-3 ; 143-5 
 compensation for, 178-180 ; 184-190 
 indirectly individualistic and 
 paternal, 129-136 
 paternal, 136-142 
 socialistic, 143-168 
 International duty : basis of, 237-244 
 Law : changes in, 293-7 
 and Morality, 285-297 
 duty of conformity to, 299-300 
 Ideal and Actual, 291-2 
 sanctions of, 286-7 
 Intervention of foreign States in civil 
 
 strife, 260-2 
 
 Intestate Succession, 105-8 
 Intimidation, 64-5 
 : of electors, 380-2 
 
 Judge-made Law, 21 ; 202-3 ; 340-1 ; 
 
 483-4 
 
 Judges : tenure of office by, 488-9 
 Judiciary : arbiter between Executive 
 
 and Legislature, 563-4 
 : functions of, 481-4 
 : lay element in, 490-9 
 : necessity for, 20 ; 333 
 : relation to Executive, 354-5 ; 358- 
 
 360 
 : relation to Legislature, 355-6 ; 
 
 362-3 ; 482-4 
 Jury: trial by, 491-9 
 
 Laisser faire, 40-1 ; 44-58 
 
 assumptions of, 144-5 
 
 limitations of, 136-7 ; 146-151 
 La id : compulsory purchase of, 191-3 
 
 private property in, 72-4 ; 76-7 
 
 taxation of, 185 
 La v : actual and ideal, 221 
 
 criterion of goodness of, 37-9 
 
 definition of, 20 ; 30 ; 33 
 
 development of, 202-4 
 
 International : basis of, 237-244 
 
 Judge-made, 21 ; 202-3 ; 340-1 ; 
 
 483-4 
 
 of Nature, 22 ; 243 
 
 positive, 22 ; 24 
 Law Council, 482-3 
 
 Laws : codification of, 343 
 : cognoscibility of, 337-340 
 : local divergencies in, 233-6 
 Lawyers : their share in legislation, 
 
 368-370 
 
 Leagues : political, 591 
 Legal Right and Obligation, 30-2 
 Legislation : basis of, 39-43 
 definition of, 357-8 
 general principles of, 37-43 
 intervention of people in, 558-560 
 localised, 521-5 
 popular initiative in, 554 
 ultimate end of, 37-9 
 Legislative Assembly: committeesof, 406 
 power over its members, 485-6 
 quorum of, 407 
 size of, 405-6 
 Legislature : constitution of, chaps, xr. 
 and xxiii. 
 
 identity with money - granting 
 organ, 350 
 
 influence in foreign affairs, 461-2 
 legal restraints on ordinary, 480 ; 
 484-5 ; 560-9 
 necessity for, 337-343 
 relation to Executive, 347-354 ; 
 360-2 ; 429-464 ; 565 
 relation to Judiciary, 355-6 ; 362-3 : 
 482-4 
 
 sessions of, 456-8 
 Libel, 62-3 ; 342 
 Liberty, see Freedom 
 Limited Liability, 97 
 
 ownership and Bequest, 102 
 Limitations of Enforcement of Contract, 
 
 94-5 ; 157 
 
 of right of bequest, 100-5 
 Loans, 177 
 Local divergencies in laws, 233-6 
 
 expenditure, 517-9 ; 527-8 
 Local Government : areas of, 515-7 
 : definition of, 511 
 : functions of, 517-525 
 : reasons for, 512-4 
 : relation to Central Government 
 
 364; 514; 517-525 
 : structure of, 525-6 
 Local Legislation, 521-5 
 Locke on property in land, 50 ; 72 
 Lunatics : care of, 141 
 : support of, 519 
 
 Madison : on Faction, 590 
 Maine : on Austin's tests of sove- 
 reignty, Appendix, 653 
 
 : on Brehon Law, 204 
 
 : on customary law, Appendix, 652
 
 INDEX 
 
 663 
 
 Maine : on Roman criminal jurisprud- 
 ence, 117 
 
 Marine dominion of States, 252-3 
 Marriage, 56-7 
 Maximum Happiness : as end of 
 
 Government, 38-9 
 Meetings : unlawful, 576-7 
 Membership of a State, 230-2 
 Mental Annoyance, protection from, 65-6 
 Method of Politics, 7-15 
 
 : historical, 7-10 
 Military Service, 173-4 
 
 Tribunals, 507 
 
 Mill, J. S. : Individualistic assumption 
 of, 12-3 
 
 on dangers of a single-chambered 
 Legislature, 430-1 
 on intestate inheritance, 106-7 
 on limitation of bequest, 104 
 on qualifications of legislators, 
 368-9 
 
 on social feeling, 42 
 on the method of politics, 5-6 ; 12 
 Minerals : property in, 75-7 
 Minorities ; representation of, 394-9 
 Misrepresentation, 62-3 ; 88-90 
 Modern classification of Governments, 
 
 607-8 
 Modification of Constitution, 561-2 ; 
 
 565-6 
 Monarch : functions of, 437-442 ; 447- 
 
 451 
 
 : hereditary, 442-3 
 
 Monarchical element in modern govern- 
 ments, 619-622 
 
 Monarchy, constitutional : English and 
 German types, 427-8 ; 437-442 ; 
 447-451 
 
 Monopolies, 149 ; 582 
 Montesquieu : on the Judicature, 355 
 Moral censure, 209-211 
 
 code : and positive morality, 23 
 coercion, 64-5 ; 577-581 
 praise, 211-2 
 Morality : governmental teaching of, 
 
 212-5 
 
 : influence on legislation, 206-8 
 : compared with Law, 204-6 
 : practical relations to Law, 206-412 
 
 Nation and State, 220-5 
 National character, 13-4 
 Nature : Law of, 22 ; 243 
 
 : state of, Hobbes's view, 45 
 Negligence, 115-6 
 Neutrals in war, 273-7 
 New States : recognition of, 259-60 
 New territory : occupation of, 253-6 
 
 Non-combatants : treatment of, 269-70 ; 
 271-2 
 
 Obligation and Right, 30-2 
 Occupation of new territory, 253-6 
 Officials : appointment of, 415-8 
 Oligarchical element in Representative 
 
 Government, 618 
 Oligarchy, 604-6 ; 608 
 Opportunities : equalisation of, 162-3 
 Ordinances of Executive, 456 
 Over-centralisation : dangers of, 512-3 
 Ownership : collective, 96-7 
 
 : fiduciary, 101-2 
 
 : limited, 102 
 
 Paley : on Hobbes's view of Freedom, 
 
 46 
 
 : on the Judicature, 355-6 
 Parliamentary Government, 429-447 
 
 Executive, 432-4 
 Parliament : power of English, 28, and 
 
 Appendix, 655-8 
 Parliaments : duration of, 556-7 
 Parties : dual organisation of, 593-603 
 
 : formation of, 591-5 
 Patents, 51 ; 78-9 ; 342 
 Paternal Government, 41 ; 132-142 
 
 Interference, 132-142 
 Pensions, bribery by, 463 
 People : intervention in legislation, 
 
 554-560 
 
 : political power of, 630-3 
 Periodical Executive, 451-4 
 Permanent Heads of Departments, 433 
 Personal Rights, 47-8 
 Physical injury, 47 ; 60 
 Pledges of Representatives, 557 
 Police : control of, 520 
 Political Leagues, 591 
 
 offenders : extradition of, 250-1 
 Political power : distribution of, 626-643 
 
 in abeyance, 629 ; 633 
 
 meaning of, 623-5 
 
 of people, 630-3 
 
 unconscious exercise of, 630-2 
 Politics : divisions, 15-7 
 
 formal, 18-9 
 
 fundamental conceptions, 18-32 
 
 method, 7-15 
 
 relation to Political Economy, 3 
 
 relation to Sociology, 2-3 ; 5-6 
 
 scope, 1-7 
 Poor Relief, 164-7 ; 519 
 Population : increase of, 317-8 
 Positive Law, 22 ; 24 
 Morality, 23 
 
 : compared with law, 204-6
 
 664 
 
 ELEMENTS OF POLITICS 
 
 Post Office, 345 ; 347 
 
 Power, Political, 626-643 
 
 Praise : moral, 211-2 
 
 Precautions against wrongs, 129-130 
 
 Preparation for war, 301 
 
 President, 443 ; 451-4 
 
 Presidential system, 451-4 
 
 Press : freedom of, 569-570 
 
 Prime Minister, 426-7 ; 435-6 
 
 Primogeniture, 108 
 
 Principles of Democracy, 610-6 
 
 of Legislation, 37-43 
 Prisoners of war, 271 
 Private property, 49-51 ; 67-81 
 Privateering, 270 
 Property : in animals, 74-5 
 
 in land, 72-4 ; 76-7 
 
 in minerals, 75-7 
 
 in vegetable products, 74-5 
 
 origin of, 71-2 
 
 right of, 67-70 
 
 seizure in war, 271-3 
 Public Prosecutor, 500 
 Punishment : degree of, 122-3 
 
 disabling, 122 
 
 machinery for, 522-3 
 
 reformatory, 122 
 
 retributive, 110-4 
 Purchase of laud : compulsory, 191-3 
 
 Quasi -government of Voluntary Associa- 
 tions, 572-3 
 Quorum of Legislative Assembly, 407 
 
 Recognition of new States, 259-260 
 Referendum, 554 ; 559-560 
 Regulation of War, 263-284 
 Relations between colonists and abo- 
 rigines, 322-8 ; 549-550 
 between Executive and Judiciary, 
 
 355 ; 358-360 
 between Executive and Legislature, 
 
 347-354 ; 360-2 ; 429-464 ; 565 
 between Judiciary and Legislature, 
 
 355-6 ; 362-3 ; 482-4 
 between representatives and consti- 
 tuencies, 553-8 
 
 Relief of Indigence, 164-7; 519 
 Religious Associations ; bequests to, 
 
 587-8 
 
 : privileges of, 585-6 
 : relation to State, 212-6 ; 583-8 
 : subventions to, 586 
 Reparation, 120-2 
 
 and Punishment, 110-2 ; 114-120 ; 
 
 125 
 Representation of minorities, 394-9 
 
 Representative Government, 371-8 ; 
 616-8 
 
 : educative effect of, 374-7 
 
 : fusion of Aristocracy and Demo- 
 cracy in, 616-8 
 Representatives as delegates, 554-6 
 
 : choice of, 555-8 
 
 : pledges of, 557 
 
 : relation to constituencies, 553-8 
 Resistance to Government officials, 
 
 170-2 
 
 Retaliatory duties on imports, 306 
 Retributive Punishment, 110-4 
 Right and obligation, 30-2 
 
 of Appeal, 502-4 
 
 of Bequest, 52-3 ; 70 ; 98-100 
 
 : late growth of, 99 
 
 : limitations of, 100-5 
 
 of contract, 54 ; 83-5 
 
 of Disruption, 226-9 ; 648-650 
 
 of Inheritance, 98-108 
 
 of Insurrection, 645-8 
 
 of Property, 67-70 
 Rights : civil and constitutional, 35-6 
 
 : family, 56-8 
 
 : inpersonam, 83-4 
 
 : in rem, 83-4 
 
 : personal, 47-8 
 
 : remedial, 37 
 Rigid Constitution, 560-6 
 Roads : maintenance of, 517 
 Rousseau : on legislative power and 
 
 " general will," 360-1 
 
 Sanctions of International Law, 286-7 
 
 Sanitation, 518 
 
 Scope of Politics, 1-7 
 
 Sea : dominion over, 252-3 
 
 Secession : right of, 225-9 
 
 Sectional Government, 528-9 
 
 Seizure of property in war, 271-3 
 
 Selection for Civil Service Appoint- 
 ments, 415-8 
 
 Semi-public Institutions, 345-6 
 
 Senate : advantages of, 466-8 
 : appointment of, 473-8 
 : functions of, 467-8 ; 478-9 
 : hereditary, 476-7 
 : powers of, 469-473 
 : relation to House of Representa- 
 tives, 468-473 
 
 Sessions of Legislature, 456-8 
 
 Simple Constitutional Monarchy, 447- 
 
 451 
 Parliamentary Government, 430-4 
 
 Slander, 48 ; 62-3 
 
 Smith, Prof. M. : on local variations of 
 law in America, 235
 
 INDEX 
 
 665 
 
 Socialism, 158-163 
 
 : ethical and political, 42 
 Socialistic interference, 143-168 
 Sociology and Politics, 2-3 ; 5-6 
 Sovereign : Austin's view of, 29 ; 
 
 Appendix, 651-8 
 
 Sovereignty,623-643; in abeyance, 627-9 
 of people, 630-2 
 
 : possession and exercise of, 629-633 
 : unconscious possession of, 631 
 Speech : freedom of, 570-1 
 Spencer, H. : on private ownership of 
 
 land, 147-8 
 
 : on races without Government, 2 
 Standing Armies, 644-5 
 State and Nation, 220-5 
 : definition of, 220-2 
 : Federal, 532-7 
 
 : compared with Confederation 
 
 of States, 538-9 
 : compared with Unitary State, 
 
 532-7 
 : relation of parts to whole in, 
 
 532-7 ; 541 
 
 : membership of, 230-2 
 of Nature : Hobbes's view, 45 
 : relation to Church, 212-6 ; 583-8 
 Subventions to Religious Associations, 
 
 586 
 
 Succession : intestate, 105-8 
 Suffrage, 378-394 
 : female, 385-7 
 
 Supreme Executive, 422-6 ; 437 
 and taxation, 335-6 ; 449 ; 459 
 : influence on legislation of, 458-9 
 : extra-legal action of, 457 
 : ordinances of, 455-7 
 : relation to Legislature, 429-464 ; 
 565 
 
 Taxation, 178-186 
 : changes in, 197 
 : degressive, 182 
 : equality of, 181-4 
 : incidence of, 184-5 
 : indirect, 183-4 
 of inheritance, 185-6 
 of land, 185 
 
 Teaching of morality by Government, 
 
 212-5 
 
 Tenure of Civil Service appointments, 
 415-8 
 
 of Judicial appointments, 488-9 
 Territory : compulsory cession of, 280- 
 281 
 
 new : occupation of, 253-6 
 
 not under civilised government, 
 
 256-7 
 
 Title to property and possession, 81 
 Trade, Free, 303-8 
 
 in war, 275-7 
 Trades Unions and moral coercion, 578- 
 
 581 
 
 Transfer of Eights, 51-2 ; 83-91 
 Treaty obligations, 257-8 ; 279-283 
 Trial by Jury, 491-9 
 Two Chambers, 465-480 
 
 : powers of, 469-473 
 
 : different functions of, 478-9 
 
 Unconscious possession and exercise 
 
 of political power, 631-2 
 Unitary State : definition of, 331-2 
 
 : compared with Federal, 532-7 
 Unlawful meetings, 576-7 
 Utilitarian conception of end of 
 Government, 38-9 
 
 Individualism, 44-58 
 
 Vegetable products : property in, 
 
 74-5 
 
 Voluntary Associations : moral coer- 
 cion by, 577-581 
 
 : powers of, 573-4 
 
 : quasi-government of, 572-3 
 
 : relation to the State, 572-588 
 Voting power : unequal distribution of, 
 
 389-394 
 
 War : preparation for, 302 
 
 regulation of, 263-284 
 
 : civil, 277-9 
 
 West European States : compared with 
 Greek City-States, 622 
 
 : Federation of, 218-9 
 Women, enfranchisement of, 384-7; 644 
 
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