V. LIBRARY UNlVtJ--:.^ !Y OF CAUFOKM A SAN &iG00 /K • POLITICAL AND MORAL ESSAYS POLITICAL AND MORAL ESSAYS Mm JOSEPH RICKABY, SJ. i.Sc. Oxon. NEW YORK, CINCINNATI, CHICAGO BENZIGER BROTHERS PRINTERS TO THE HOLY APOSTOLIC SEE I902 Copyright, 1902, By BENZIGER BROTHERS. PREFACE Of these Essays, the first, entitled A Disser- tation on the Origin and Extent of Civil Au- thority, was written for the Degree of Bachelor of Science in the University of Oxford, where the Statutes (tit. vi., sect, iv., § i, ed. 1899) provide that " Science shall be taken to in- clude Mathematics, Natural Science, Mental and Moral Science." The Dissertation is here published almost exactly as it was submitted to the Examiners. Of the remaining Essays, Numbers II., III., IV., V. have appeared in the pages of The Month, more or less in their present shape. A work by the same author, Moral Philosophy, Ethics, and Natu- ral Law (Longmans, London), has found favour as a text-book in many Catholic schools. The author begs all students of that work to accept these Essays as supplying some of its deficiencies from an historical point of view, and improving upon several of its statements. CONTENTS ESSAY PAGE I. A Dissertation on the Origin and Extent of Civil Authority i II. Savages i75 III. Casuistry *97 IV. The Catholic Doctrine of Lying and Equivo- cation 215 V. Socialism and Religious Orders . . -235 VI. Morality without Free Will . . . 249 VII. The Value of Sentiment in Ethics, an Illustration 267 VIII. Occasional Notes: A. The Aristotelian Di- vision of Justice. B. The Significance of Types in the Theory of Morals. C The Theory of Value . . . .285 vu Political and Moral Essays o^<>~- ESSAY I A DISSERTATION ON THE ORIGIN AND EXTENT OF CIVIL AUTHORITY lcr\vp6v Tt ttoAis icrrl (oixev, Nic. Eth. II. 1103 a, 31). That meaning of the word is too narrow. It would be most unnatural for man to remain havino- nothing, and doing nothing, but what his physi- cal constitution supplied him with, and blindly led him to do. By appointment of nature, man 1 Perhaps the best modern equivalent of the Aristotelian vai<; is ' development ' ; and (frvo-et ttoXltlkov £woj/ would be rendered, ' a living creature who reaches his term of development only in the 7r6Ats.' io Political and Moral Essays is the architect of his own fortune. Many things are natural to him which it takes an effort of his intelligence and will to compass. 1 § 9. Again, there are things ' natural in the advance of nature,' and of them we have made our definition ; and things ' natural by defect of nature,' such as sickness and death: these latter are excluded from the definition and from all the argument yet to follow. Both are of God as Author of nature : but the former are ' of God commanding,' the latter, ' of God permitting,' where ' permission ' is not to be taken in any moral sense, but denotes the mere absence of hinderance. We should say that civil authority is natural and of God ; and plague and famine and death are also natural and of God, but not in the same way : civil authority is of God commanding, in view of the exigency of human nature for its due de- 1 "Other beings are complete from their first existence, in that line of excellence which is allotted to them : but man begins with nothing realised (to use the word), and he has to make capital for himself by the exercise of those faculties which are his natural inheritance. Thus he gradually advances to the ful- ness of his original destiny. Nor is this progress mechanical, nor is it of necessity : it is committed to the personal efforts of each individual of the species: each of us has the prerogative of completing his inchoate and rudimental nature, and of develop- ing his individual perfection out of the living elements with which his mind began to be. It is his gift to be the creator of his own sufficiency ; and to be emphatically self-made. 1 ' — Cardinal Newman, Grammar of Assent, p. 349. Origin and Extent of Civil Authority n velopment: plague and death are of nature failing, and God permitting it to fail. No wonder then that, while he that resisteth the power resisteth the ordinance of God (Rom. xiii. 2), the feeding of the hungry and the tending of the sick are works rewarded in heaven (Matt. xxiv. 34-36). Hunger and sick- ness, though permitted, are evils that we should endeavour to take away : but the endeavour to overturn the State is treason and deadly sin, inasmuch as the State is not simply per- mitted, but required and commanded. § 10. There is little room for originality in the proving of propositions like these, — that human nature, for its full and fair development, requires life in society, domestic and civil : that civil society is impossible without some civil authority to control it; and that, there- fore, in the strict sense laid down above, civil authority is in the highest degree a natural institution : that treason, anarchy, and disrup- tion of States is the subversion of human nature, in contradiction to the will and behest of its Creator. A proof of all this, a little less hackneyed than other proofs, may be derived from consideration of the pursuit of objective truth, upon which all human minds are engaged with more or less of diligence, fidelity, and success. Objective truth is the same for all 12 Political and Moral Essays minds, variously apprehended, comprehended by none except by the Supreme Mind, with which it is ultimately identified in the ideal order of being. 1 Such truth is not of human thinking, but is the standard to which human thinking is conformed whenever it is right think- ing. Thus there is an affinity of cognition between the minds of all men. All march, some in straighter, some in more tortuous paths, some nimbly, some with lame and falter- ing steps, towards the same goal of knowledge ; and on the road that leads thither company is a necessity, if we are to travel far or fast or safely. It is our own thought that gets us along, not any one else's thought ; but fellow- thinkers stimulate our thinking, give us things to think about, and check our errors. Com- monly speaking, a man who sets to thinking all alone will either give up his task or become a visionary. If, therefore, thought and know- ledge are natural to man, and indispensable to the due elaboration of his being, the common pursuit of knowledge is indispensable also. But knowledge can only be pursued in common 1 By the 'ideal order' I mean the order of possibilities and necessities. The ideal order covers the actual and transcends it. It is the order of science and of art also, so far as science and art reach beyond actualities. As leading to the ideal, history is the ladder of poetry. But all this speculation is out of my subject. Origin and Extent of Civil Authority 13 on the firm and ample ground of civil society, and under the shelter of civil authority. Wher- ever that ground has been broken up, and that authority shaken, the course and flow of know- ledge has been interrupted, as in the overturn- ing of the Roman Empire by barbarian and by Mohammedan. Civil society is the nidus of thought, culture, science, art, invention ; and is naturally requisite, as those pursuits are nat- urally requisite, for the development of man. But civil authority is the bond of civil society : that authority, therefore, is in the nature of things requisite and indispensable. § 11. Thus far of the theoretic and ethical ground of civil authority, or of the reason why such authority ought to be among men. There is further question of the actual and historical origin of this authority, how in point of fact it has come to be in the world, a highly complex enquiry. Had all mankind, from the first, formed one State with a continuous history, advancing in steady progress from less perfect to more perfect stages, then the rise and growth of authority in that State would have been evawoiTTov rt, like Aristotle's model city: it could have been grasped by the mind's eye as a whole, and pointed out and exhibited and rationally explained. Given a volume of liquid, the temperature of which always rises and 14 Political and Moral Essays never falls, or always falls and never rises, never rises in one portion while it falls in an- other, never rises or falls faster in one portion than in another, the variations of temperature in that liquid are not difficult to register and explain. But with a vast volume of liquid, steaming hot here, frozen there, where areas of increasing heat coexist with areas of heat de- creasing, where what has been increasing in heat suddenly begins to cool, and what has been losing heat turns to recovering it, the thermometrical record of that liquid, accurately made out, must be cumbersome and intricate. There have been countless States in the world ; thousands are extinct: each has had its own history. Authority has rung its changes in those countless States in endless variety of ways. There are buried and extinct civilisa- tions that once covered large portions of the earth. 1 And civilisation means the develop- 1 So Plato, Laws, III. 676 B, C : — " Must we not admit the rise of thousands upon thousands of States within this period, and a proportionate number of cases of the ruin of States? And must not these States, each on its own ground, have run through the whole cycle of revolutions, now waxing, now waning, now improving, now deteriorating ? " This and the following pages (676-681) show Plato to have been no stranger to the historical or dynamical conception of the State. He insists on what is perhaps too little noticed by evolu- tionary historians, that there have been losses as well as gains to civilisation. He supposes recurring catastrophes by deluges, Origin and Extent of Civil Authority 15 ment of the State. There have been ebbs and flows of civilisation. The State was less devel- oped in England under Edward the Confessor than at Athens under Pericles fifteen centuries before. England was then an adolescent Nation : Athens, in the days of her glory, was a City State, ripe and mature. 1 The most I can do is to set forward some typical instance of the origin of government. I will gather certain facts of archaeology into an historic parable, or mythus, false as history, but, I hope, not wholly inadmissible as an illustration of his- tory. § 1 2. The land of Kasava was pleasant and productive. Like other lands, it existed before its population. The wild fruits ripened while yet there was no human hand to gather them. The animals ranged and fed, sometimes on one another, but no man had arisen to kill and eat. Kasava was not the cradle of the human race. When man did come, he came in a multitude : pestilences, and other causes. He describes the survivors gradu- ally recovering the arts of life, and reweaving the web of a po- litical community. 1 This dissertation might have been divided into two parts : Civil Authority in Europe, Civil Authority in Asia. The two accounts would have differed widely. The political mind of European and Asiatic has never been the same in history. Nevertheless the study of anthropology reveals a course of human development more uniform on the whole than could have been anticipated. 1 6 Political and Moral Essays for, take him at his lowest, man is a gregarious animal. ' The individual ' is quite a late con- ception in human history. There was little individuality in primitive times. There is little even now among the poor. The poor man has not a free hand : he is bound up with his class, even when he is an outcast and a tramp. Primi- tive man was no solitary wanderer. He was a member of a ' horde,' that is, of a community having no fixed abode, still keeping together and wandering over the earth in company, as gipsies do to this day. The company protected its members from the attacks of men of other companies and from wild beasts. The members rendered mutual services to one another, do- mestic, medical, religious. They lived by the chase and shared the quarry in common. The individual was tethered to the multitude by the strongest social ties. He had no thought of setting up for himself. Nor would he easily pass from the horde to which he belonged to any other community. He might be welcomed and eaten, if food were scarce. There were great men and small men in the horde of the Lapas : so these nomads were called, the first men to appear in the land of Kasava. There were Lapas who pushed, and got things arranged to their liking ; and there were quiet Lapas who gave way; also indolent and incapable and Origin and Extent of Civil Authority if vicious Lapas. Thus, while all was supposed to be done by the consent of the grown men of the horde, the active and leading spirits really governed. They directed the migrations of the horde within its 'sphere of influence,' or tract of territory within which this mundane planetary body had its orbit, and was accus- tomed to revolve. There were other hordes besides with their several spheres of influence. The orbits of migration were fitful and irregu- lar. The spheres of influence came to intersect one another. Horde clashed with horde, and fighting ensued. In one of these encounters there were so many Lapas slaughtered that it was resolved in common council of the sur- vivors, because of the scarcity of game, — that was the pretext, — to seek other lands. They wandered for years, enduring great privations, and encountering hostile hordes on the way, who harassed them sorely. The whole horde might have fallen to pieces, and been dissolved like a comet breaking up into a shower of meteorites, had not a genius arisen among them in the person of a young man named Sava. Sava had an expedient for every emergency. He retrieved the desperate fortunes of the horde ; and public gratitude and confidence placed the entire administration in his hands. Crowns were not yet invented, but Sava became 1 8 Political and Moral Essays virtually king, and sat on a high turf-seat in the middle of the camp, the first monarch on the first throne, a war-leader and public bene- factor raised to royalty by the grateful enthusi- asm of his people. 1 Sava led the horde into the pleasant land, called from him Kasava. Sava, the first king of the Lapas, also built the first city in the land, Savapore. It stood at the confluence of two rivers, and was cunningly intersected with ditches and dikes. A thick hedge and stockade closed it in on the land side. The post was primarily military, not so much to keep friends in as to keep enemies out. The horde did not settle down and live there. They wandered, nomads as before, up and down the land of Kasava. But Savapore was their secure retreat, when they were hard pressed by enemies. The land by this time had attracted other hordes: but the Lapas, under Sava's inspiration, had resolved that they alone would possess Kasava, and this resolution they carried out in the main successfully. They expelled some invaders, and coalesced with others. To Savapore they brought home their booty, and in the river pastures round 1 "The first founders, proving benefactors of the multitude, either by advancing the arts, or by success in war, or by gather- ing the people together, or by providing land, were made kings by the consent of their subjects, and bequeathed their power to their posterity." — Aristotle, Politics, III. 1285 b. Origin and Extent of Civil Authority 19 Savapore they fed their flocks and herds. 1 Huts in time were built about the fort, on both sides of the two rivers : there the women and children were left, while the warriors went out to hunt and fight. To Savapore suitors and complainants came, as an alternative to fight- ing the contention out among themselves ; and Sava and his successors sat in the gate, declar- ing dooms and customs, not without the advice of wise elders with long memories, for whom seats were placed around the king. It was found advisable to secure the country by a num- ber of smaller forts, about which were also erected huts. But the jealous care of the kings prevented these subsidiary hamlets from ever emancipating themselves from the control of Savapore. Thus in Kasava there never was any call for a Theseus, to destroy the council- chambers of the smaller settlements (Thucyd- ides, II. 15). The assemblies that met in those hamlets were never allowed to rise above the rank of parish councils. The government was centralised at Savapore. The nomad life of the Lapas, and of the hordes who amalgamated with them, has long since been exchanged for 1 Doubtless, the domestication of animals took longer time for man to learn than the mythus allows for. The same may be said of any art of delving and diking, indeed of the whole transition from the savage to the barbarian. 20 Political cmd Moral Essays pasturage and agriculture; and out of agriculture has grown commerce. Kasava is now a rich and powerful State, yet not altogether so inter- esting in its maturity as were its early beginnings under King Sava I. § 13. The my thus goes no farther for the present. It brings home this consideration, that it is a mistake to look for the earliest oriein of the State in a group of independent house- holders, settled upon the land as stock farmers and agriculturists. Man is a nomad before he is an agriculturist; and even the nomad is already a member of a State. The civitas is prior to the urbs, the ttoXi? to the dcrrv, not only in nature but even in time : az^Spes 17 77-0X15. There was a State before there were towns, before even there were homesteads. These nomads had a polity, but not a settlement (fxe- vovarav tto\iv)\ that was to come (ixeWovcrav, Heb. xiii. 14). 1 They were governed, not by human law, for human law is the outcome of mature civilisation, but by the custom of the horde, which left the individual anything but free to do as he pleased. A nomad horde is not an ideal political community, nor a Maori a model man, nor a sponge the best type of animal. Still, the perfection of the higher type 1 But the Israelites were not a horde, they were not savages : they were a patriarchal society. Origin and Extent of Civil Authority 21 is no reason for refusing the generic name to the imperfect lower form, especially where that lower form holds in deposit the potency of the higher development. 1 § 14. The my thus makes no mention of the family, and no mention of religion, two great creative influences, it will be objected, away from which the State and civil authority could never have been engendered. First with regard to religion. I consider the influence of religion to have been a fostering rather than a creative influence, confirmatory rather than originative of politics and government, — at the same time a fostering influence of the highest efficiency, so efficient that, without it, what we know to have been the historical development of civil society could never have taken place. Religion surrounded the first chiefs of patriarchal society with a halo of divinity : it did not raise them to power. They were ' sons of heaven ' because they were ' kings of men,' or masters of house- holds. The priesthood followed upon royalty and upon paternity : it did not confer royalty, it did not make the pater familias. The first felt rational need of man is for social union. 1 In writing this I stand with Seeley (Introduction to Political Science, Lecture II. pp. 32-36) rather than with Green, who declares, " A nomad horde could not be called a political society" (Principles of Political Obligation, p. 102). 22 Political and Moral Essays When men came together, they worshipped together: they did not first come together in order to worship. Treason and rebellion are offences immediately against the social order, and thereby against God, the Saviour and Supreme Custodian of the State : they are not formally crimes against religion. The first community is political : the political tie, once formed, is strengthened by a religious sanction. The worship of departed ancestors hallowed the person of the pater familias, who represented them and in a manner continued their life. § 15. The origin of the State from the family has been traced by Aristotle (Politics, I. i-iii) and a crowd of meaner writers. This theory culminates in, though it does not necessarily involve, the 'patriarchal theory,' pushed to ab- surd lengths by Sir Robert Filmer in Locke's day. I am not without apprehension of difficulty in the treatment of this subject. My apprehen- sions are expressed in two proverbs, one Greek, kclkov KaKaj iaaOai, and one mediaeval Latin, obscurum per obscurius. The darkness that besets the origin of the State is bad enough : there is a worse and deeper darkness enshroud- ing the first commencements of the family. From the Bible (Gen. ii. 24, quoted Matt. xix. 5) we have one flash of light as to the law of marriage before man was multiplied on the Origin and Extent of Civil Authority 23 earth. Then the darkness comes on, and we have to peer into it as best we may. In lack of other evidence, we may agree to judge of primitive communities of men by the savage communities which we find in Central Australia, in Queensland, in Borneo, among the Anda- mans in the Bay of Bengal, among African Bushmen, North American Indians, and else- where. Such a community are our Lapas, when they first appear in the mythus. Their food consists of things in their natural state, wild fruits, roots, and the flesh of such animals as they can kill. Their cookery is of the simplest. They are ignorant of baking, as of sowing and reaping and of all agriculture. They have no domestic animals except dogs. They have no use of metals. In such a society we do not expect to find the family quite as the institution exists in modern England. Not exactly families, yet not promiscuity. The hypothesis of primi- tive promiscuity remains an unproved hypothe- sis. The laws of physiology seem to forbid such license. It would have been a bar to the increase of the race. 1 Among our Lapas, — whom we take as a specimen of the savages that have been studied by modern travellers, — the intercourse of the sexes is subject to severe restraints. The horde is divided into two 1 See Mr. Devas's Studies of Fa.7>iily Life, §101. 24 Political and Moral Essays classes, or phratries : 1 either class, or phratry, again is subdivided into totem groups. Be- tween members of the same phratry there is no intermarriage, still less between members of the same totem group. 2 But, without any con- tract, every man in any given totem group is reckoned to be the husband of every woman of a corresponding age in some particular totem group of the other phratry. Actually, however, except on certain rare occasions, he will not cohabit with more than one or two women : these are assigned to him, not chosen by him, — a fair approach to monogamy after all. The children stay with the mother, and belong to the totem group to which she belongs. Such J No real resemblance to the Attic parpiai. 2 In the language of the Algonquin Indians, ote means group ncnne, m is the suffix meaning his, and oth is the article prefixed. Out of oth-ote-m, a certain trapper, named Long, caught the sound and coined the name 'totam,' or 'totem.' The group name is often the name of an animal, sometimes of a plant, sometimes of neither. A savage, finding himself named from an animal, can- not but have some regard for that animal : he may even tell you that he is descended from it : but the story of such descent arises out of the name, not the name from the story. The names of these totem groups have little or nothing to do with the religion of the savage who bear them. Totem in this connexion repre- sents a matrimonial custom of exogamy, nothing more. The advantage of the custom is that it prevents outrages and quarrels : to attack any individual is to attack two groups instead of one. But the name ' totem ' is further applied by anthropologists to a different object entirely. Most savages have some natural object, generally an animal, which they venerate, and which represents Origin and Extent of Civil Authority 25 are the rudimentary family relations of this rudimentary State. The rudimentary State is prior to the developed family. Nor was the first king a patriarch, or house-father, magnified. In the beginning, in such races as the Lapas there were no patriarchal houses. The first king, Sava I., was an invicta bello dextera, a leader skilful in war, an early prototype of Lord Roberts on the veldt. When the family, in some sort as we know it, became an institution, there appeared one sacred, patriarchal, royal family, which claimed descent from Sava I. He was the eponymous hero of that family, and later tradition looked upon him as the first house- father. In point of fact, this descent was much to them in some way their ancestors. Out of this fact a whole literature has arisen, under the name of ' totemism.' A totem in this sense has nothing to do with marriage customs. Thus we read of totems among races like the Samoans, who have, to be sure, their sacred tutelary ancestral animals, but the exogamic in- stitution of the totem group does not exist among them. Hence it appears that the name ' totem ' was something of a mistake to begin with, and has been mistakenly applied to two perfectly distinct features of savage life, the one a feature of family rela- tions, the other a feature of religion. Properly speaking, a totem is the crest and name of a sort of clan, and the object of the designation is to secure exogamy. The totem trees in the Pitt- Rivers Collection display the crests, or one might say, the heral- dic bearings, of the illustrious barbarians before whose houses they stood. For any scientific value that this note may possess, I am indebted to Dr. Tylor, F.R.S., of the University Museum. (Cf. Man, A Mottthly Record of Anthropological Science, January, 1902.) 26 Political and Moral Essays eked out by adoption, a fertile process, of which more hereafter. Meanwhile the mythus re- sumes. 1 § 1 6. Not long after the entry of the Lapas into the land of Kasava, they began to change greatly for the better. They ceased to be sav- ages. They learned to domesticate animals. They got them flocks and herds, and from a nomad horde of hunters they became a pastoral people. The cultivation of the soil followed upon the domestication of animals : agriculture was an adjunct to pasturage. But the law of diminishing returns soon asserted itself. The same plot of earth would not yield in the fifth year what it had yielded in the first. The primitive farmer thought there was some curse upon the spot, and went elsewhere. Agricul- ture itself was nomadic in its commencements. 2 The secrets of fallow, rotation of crops, and manuring were yet to be learned. The use of metals, even to the smelting of iron, followed in due course. This much facilitated the clear- ance of the primeval jungle, which at first had been cleared by fire. Thus the Lapas reached 1 The silvaticus solivagus of Hobbes and Rousseau makes no figure in this veracious history, nor indeed in any history : he is a figment of the philosophic brain, ere that brain was disciplined by the historical method. 2 Arva per annos mutant et superest ager (Tacitus, Germania, xxvi) . Origin and Extent of Civil Authority 27 the ' patriarchal ' stage of development. Their economy was no longer 'savage,' but 'barbaric,' such an economy as we read of in the Germa- nia of Tacitus and in the Homeric poems, the economy of the early Romans and of the Kelts of Britain and Gaul. We may study it among the Arabs and the tribes of the Panjab. The important feature is the development of the family under the patriarch, or house-father, in some such way as the following. The domesti- cation of animals made a beginning of personal property, the animals attaching themselves to the individual who had domesticated them and understood them. He required the services of other men to tend his pets. Inasmuch as the animals were his, their natural increase was his also. Res fructijicat domino. The stronger sex were more likely to become small proprietors in this way than the weaker. The ascendency of the male sex over the female gradually grew. The man began to think that, as he had do- minion over his cattle and their increase, so he should be lord also of his wives and children, have certain women for his own exclusively, and consequently recognise and hold certain children for his. 1 Not to put too fine a point 1 Not that I base the sentiment against polyandry on mere desire of ownership. In no age of the world can man love woman passionately, and not seek to possess her solely. Have not 28 Political and Moral Essays upon the matter, the man insisted on being lord of his whole stock. Thus that fortress of father- hood and marital right, the patriarchal house- hold, was reared on a triple basis : — (i) The absolute supremacy of the house-father over wives, children, domesticated animals, and the servants who tended them ; all being, as the Roman lawyers phrased it, in manu} (2) Monogamy for females, one husband to one or several wives. (3) Kinship traced through males, the house- father being taken for centre of reference. § 1 7. Among the Malays there are, or were thirty years ago, — for such interesting vestiges of barbarism are rapidly fading under the ad- vance of a civilisation which is not always an obvious improvement, — long-drawn-out houses, or casernes, capable of holding from fifty to a hundred persons, built in sections, each sec- tion containing a monogamous family. 2 The whole caserne is under the matriarchal or maternal rule of some venerable grandmother, having for lieutenant her brother. The fathers Othello and Desdemona been from the first ? Or has the passion of human love grown only gradually with human intelli- gence? 1 "Among barbarians, woman and slave are on the same level " (Aristotle, Politics, I. 1252 b). 2 In what are called ' pueblo houses 1 the economy is the same, but the sections are built vertically one over the other. Origin and Extent of Civil Authority 29 of the several families have no authority, nor have they any home in the house : they come and go ; they are members of another house. Like Jacob for Rachel, they must do several years of service, before the bride whom they seek is given them. Given in marriage, the girl still stays in the matriarchal house. This ar- rangement is in no way connected with any primitive promiscuity, for which some writers take it as evidence : it rests on the mere eco- nomic consideration of the value of the girl's labour, particularly in agriculture, to the house in which she was born. The family prefer tak- ing the man in occasionally to parting with her. If, however, the husband is a person of impor- tance, — which, among the Fuegians, who have similar customs, means that he has a canoe of his own, — and wishes to take his wife away with him, he pays bride-money (the Homeric hhva) not to the girl's parents, but to the matri- archal grandmother, or to the maternal uncle, in compensation for the loss of her services. Having so taken her, he founds now a patri- archal family of his own. The bride-money still survives in the ' gold and silver,' which in the Catholic marriage service the bridegroom presents to the bride. I am inclined to con- jecture that the Amazons of old, and some representatives of the type in more modern 30 Political and Moi r al Essays times (see Mr. E, J. Payne's History of the New World called America, Vol. II., Claren- don Press, 1899), were clusters of matriarchal families. § 18. According to the received view, the horde passed into the tribe, the tribe dif- ferentiated itself into clans, and the clan into families, whence finally has emerged the modern ' individual.' This view is to me difficult. The difficulty of the whole matter is to see how, in such a loosely organised community as the horde, the well-knit despotism of the patriarchal family came to be erected. I believe no per- fect theory of the transaction has yet been found. We are left largely to guesswork and provisional hypotheses, pegs to hang facts on as they are discovered, and to abandon if they will not bear the strain. The horde, it is said, passed into the tribe, and the tribe differs from the horde by the strengthening of the tie of kinship. But how can the tie of kinship be strengthened otherwise than by the develop- ment of family relations? The family surely is the generating point both of clan and tribe. And is it not likely that from the family the clan would be formed before the tribe, the clan being the smaller union of the two, and the kinship of family with family in the clan more real and visible than in the tribe ? I therefore Origin and Extent of Civil Authority 31 look upon this order of development as more probable: first the horde, then the family, — either matriarchal or patriarchal, still rudimen- tary and imperfect, — then the clan, and lastly the whole horde transformed, or, as I might say, 'segmented, 5 and making the tribe. The full strength of the patriarchal family I willingly allow to have been attained only as the organ- ism of the tribe became complete. When I say, ' first the horde, then the family,' I mean, ' first in the order of progress from savagery to civilisation,' assuming such progress to be made as anthropologists lay down. Savages are sav- ages by living in a horde, and by the imper- fection of their matrimonial arrangements. Imperfect as they are when tried by a Christian standard, these arrangements are still highly complex, and severely enforced. Savage life in this respect is stricter by far than the lives of many civilised men and women. § 1 9. Thus the horde came to be honeycombed with families, segmented into families as into so many separate cells, This process of seg- mentation transformed the ' horde ' into the ' tribe.' All tribesmen were kinsmen, whether by real descent from a common male ancestor, or by adoption into his family or clan, the body of natural or factitious descendants who bore 32 Political and Moral Essays his name. Adoption — a conventionality to English ears — was a great reality in the patri- archal world, as every Roman lawyer knows, and every theologian should know. The ac- counts that we read of the rapid multiplication of certain families are not to be brushed aside as involving physiological impossibilities. Families multiply rapidly enough, when the head is powerful, and alien neighbours are glad to be adopted into his house and bear his name. The development of the tribe has been the develop- ment of the State. Aristotle, therefore, was right in making the family prior to the State in time, if by ' family ' he meant the patriarchal family, and by ' State' the State in its maturity. What Aristotle failed distinctly to set down, though he was not an utter stranger to the notion, was that savagedom preceded barbarism, and that, previous to the elaboration of the patriarchal household, there existed some rude form of political society, now known as the 4 horde,' with such imperfect marital relations as I have described. Such at least is the thesis of modern anthropologists, though no one supposes that the thesis is yet either adequately stated or fully demonstrated. 1 1 Men may fall in the scale of civilisation as well as rise in it, fall rapidly, and rise again slowly. We have to reckon with the possibility of retrogression as well as of progress. Origin and Extent of Civil Authority 33 § 20. Kindred, whether by blood or by adop- tion, was the cement of patriarchal society. 1 The man who could not name the family to which he belonged, at least as client or slave, had no place in the tribe : he had no social or political status whatever: he had no rights that any other man would champion, he could suffer no wrong that any power would avenge : if his own strong arm failed him, he was a lost man, unless indeed his very weakness and poverty rendered him contemptible and safe. 2 § 21. Reverting to the royal city of Sava- pore, now in the patriarchal stage of develop- ment, we are surprised at the procedure which there takes the place of our criminal law. An offence against person or property is not a crime against the State of Kasava : it is a crime against the family of the person offended. If 1 On the decline of the family as a political factor in our civi- lisation, see Seeley, Introduction to Political Science, Lecture III. pp. 54-58. 2 M. de Coulanges, La Cite Antique, p. 234, writes of patri- archal man in the family: Partout ailleurs il est sans dieu et en dehors de la vie morale. La seulement il a sa dignite d'homme et ses devoirs. II ne peut etre homme que la. This eminent French scholar seems to me somewhat to exaggerate the strength of primogeniture. The cadet branches of the family, and the younger brothers of each generation, naturally the more numer- ous, often the more capable, would never have brooked such absolute predominance of each eldest son and his offspring as M. de Coulanges portrays. I find, however, some justification of M. de Coulanges in this passage of Plato {Laws, 740 B, C) : " Let 34 Political and Moral Essays the sufferer be a man of no family, ' a land- louper,' aTLfxrjTos ixeTai'dcrT7]<;, there is no crime of which any one will take cognisance, unless the outcast show pluck and vigour enough to avenge himself. But slay the member of some household, and it is as though you had dis- turbed a wasps' nest : the whole brood will be out to chase you. Dabunt malum Metelli, dabunt malum Metelli. Nor will the mischief end with vour death. Your nearest kinsman will wreak vengeance on your slayer, and so on either side, pugnabunt ipsique ncpotesque. There is evidently some false principle at the root of this regressus in infinitum, on which Euripides moralises, as is his wont : — If a wife shall slay her husband, and then the son shall slay the mother, and that son's issue must pay in blood for the blood his father shed, how far on shall one travel to find the holder of the allotment always leave some one only of his children as heir. ... As for the other children, where more than one child is born, ... let the authorities distribute the males to be adopted as sons by such of the citizens as are child- less." 1 Scipio Africanus Minor affords an instance of such adop- tion. M. de Coulanges insists alike on the strength of the patriarchal family and the strength of the patriarchal State. Are not these two powers in inverse proportion to one another ? Does not Scottish history show the strength of the family to have been the weakness of the State ? And was not the policy of Louis XI. the aggrandisement of the central authority at the expense of the great houses ? M. de Coulanges takes no ac- count of any stage of human progress prior in time to the patri- archal. Origin and Extent of Civil Authority 35 a term to miseries? Wisely did our sires lay down the law of old : they forbade him that had blood on his hands to appear in public, or to meet any one : their way was to pu- rify him by banishment, but not to slay him in revenge : otherwise some one was bound always to be guilty of homi- cide, whoever had last stained his hands in blood. ... As long as I have the power, I will stand by the law, and check this brutal tradition of murder, the everlasting bane of country and commonwealths. — Orestes, 504 ff. 1 The saner portion of the community, the leaders of the tribe, and the men of religion, de- vised various checks upon this hereditary blood- feud. Among the Hebrews, cities of refuge were marked out, as we read in Num. xxxv. 9 ff. Among the Greeks, as the quotation shows, and many legends refer to the custom, it was enough if the murderer expatriated himself. Religious rites of purification were also in- stituted (yEschylus, Eumeuidcs, 237-239, 445- 452). But the great remedy was the insti- tution of bote, or compensation to be paid to 1 The tragic monarch did well in exerting his power to " quell this brutal and murderous " practice of blood-feud. Yet blood- feud had its office in the march of civilisation. There is perhaps a stage in which this is the only form of justice available against crimes of violence. " The grand principle of Kaffir law," says Sir George Gray, — and we must remember that Kaffir law was once European law, — "is collective responsibility: do away with this, and the Kaffirs will speedily become unmanageable. 11 Con- siderations of this sort are valuable contributions to the solution of the vexed question of Old Testament morality. See the Ap- pendix to the third edition of my Ethics and Natural Law. 36 Political and Moral Essays the relatives of the slain, of which by de- grees a regular tariff was drawn up, accord- ing to the dignity of the man killed. It rested at first with the choice of the kinsfolk, whether they would take bote or have blood. Some heinous murders were boteless, and must be expiated in blood. It became the object of the State more and more to press the acceptance of bote. The Christian precept of forgiveness of enemies, a vital precept in a barbaric age, also entered in to prevent slaughter. But no sooner was the State able to insist upon bote being taken, than a further function devolved upon it, the function of criminal trial, and from that, of civil trial also. It was necessary to determine whether the offence was boteless or not. The offender brought up his kinsmen no longer now to fight for him, but as witnesses of character, or compurgators. If the offence was boteless, the State might hand the criminal over to his enemies to slay : but in time the State preferred to keep the slaying in its own hands. 1 The public executioner entered upon his office, and the State discovered that it bore not the sword in vain (Rom. xiii. 4). There was a difficulty, not soon overcome, in getting the contending parties to come into court. It 1 Boteless offences were the original type of what are now called crimes, matter of criminal as distinguished from civil pro- Origin and Extent of Civil Authority 37 long remained open to the accused to decline trial, and settle the matter by righting his ac- cusers or their champions. Provision for this ' wager of battle ' was not struck off the Eng- lish statute-book till the beginning of the nine- teenth century. Every trial, it has been well observed, whether criminal or civil, is " a fight arrested." What we call 'a criminal offence,' matter of jus publicum, is taken by the State for an offence against itself : of old it was an offence against the family of the sufferer. What we call ' civil procedure,' matter of jus privatum, is still regarded by the State as a private contention, of which, however, the State will take cognisance, if called upon, and will enforce its decision. § 22. We have travelled a long way from the patriarchal city of Savapore. Returning thither for the last time, we discover a second matter of surprise, quite a startling paradox ; it is this : here is a State without any legislative power. cedure. Plato (Laws vi. 767 B) marks the distinction thus, " For other cases let there be two tribunals : the one when any private individual accuses another private individual of doing him wrong, and so prosecutes him and demands judgment ; the other, when the commonwealth considers itself aggrieved by any of the citizens, considers the public interest threatened, and wishes to support it. 11 To have risen to the conception of the common- wealth being wronged {to Stj/jloo-lov aSixeio-Otu) argues a develop- ment of self-consciousness and of civil personality in the State (see§ 5). 38 Political and Moral Essays There is absolutely no power in Savapore, or in the whole land of Kasava, that can make a new law. 1 For laws there are customs, registered in the memories of a Council of Elders. These Conscript Fathers meet, not to legislate, but to remember, though no doubt their memories prove rather convenient for their own purposes. But the theories of Royal Ordinances and of the Omnipotence of Parliament have yet to be invented. The answer of Pope Stephen in the third century, on the validity of baptism con- ferred by heretics, Nihil innovetitr, nisi quod tradition est, was quite a patriarchal utterance. There are considerable remains of patriarchal civilisation still in existence in India and else- where. A mistake of the English government, 1 Si nous entendons par legislateur un homme qui crde un code par la puissance de son genie et qui l'impose aux autres hommes, ce legislateur n'existait jamais chez les anciens. La loi antique ne sortait pas non plus des votes du peuple. La pensee que le nombre des suffrages pouvait faire une loi n'apparait que fort tard dans les cites (La Cite Antique, p. 220). Plato somehow divined this truth, that there was a civil state anterior to legislation. " We may conclude," he says, " that those ages had no need of lawgivers, nor was there any legislation at that time. The art of writing was not yet in vogue at the period we are considering : the people lived in obedience to customs and traditional observances " {Laws, III. 680 A). He thinks that when small clans, having dif- ferent customs, united together, legislation then first became necessary, to decide which customs should prevail in the newly formed whole (id. 681 A-C). For the general concept of Law see my Ethics and Natural Law* Pt. I. ch vii. pp. 126-132. Origin and Extent of Civil Authority 39 now happily recognised and being avoided, was to endeavour by legislation to supplant customs which were as fixed and firm to the inhabitants as the law of gravitation to the astronomer. Such legislation was doomed to failure. Time-honoured custom overlaid new- fangled law. 1 I hasten to add that, at the moment at which I write, Kasava has passed through the patri- archal stage to the military and commercial stage of civilisation ; that " the substitution of an artificial for a natural basis of subsistence " J is complete ; and that Savapore under King Sava XCII. is as modern a city as London or New York. We take leave of His Majesty and his Lapas. koi to [xev Sr) tov fxvdov reA.os e^erw (Plato, Politiats, 274 D). § 23. Civil authority in its maturity is at once legislative, judicial, and executive. In the rudimentary State, executive functions are not less undeveloped than legislative and judicial. 1 There is, however, one striking instance of abolition of custom even in the age when custom was supreme, in the half- patriarchal, half-military society of the sixth and seventh centuries of our era. I mean the conversion of the Teutonic races to Christianity. How many reputed 'good customs' must have been undone when Edwin of Northumbria was baptised, and high-priest Coiffi flung his spear at the idols in the temple of Godmundingham ! 2 History of the New World called America, by E. J. Payne, Vol. I. p. 276. 40 Political and Moral Essays We may divide executive functions into those which are executive proper, being concerned with the execution of justice as decreed in courts civil and criminal, — such functions are an appanage to the judicial ; military and diplo- matic functions, pointing to foreign relations of war and peace ; and lastly, functions which we may call administrative. These last are social and economic rather than political. They deal with such branches of the public economy as the State takes up and makes matter of legis- lation — education and the public health are instances : administrative functions have to do with the carrying out of such legislation. Excess of administration makes bureaucracy. The administrative staff behave in some coun- tries as the servants, in others as the masters, of the people. In England they are jealously watched by the legislature, by the judicature, by public opinion and the press. We detest a ' jack in office.' The delinquencies of an official person are punished as severely as those of a pauper, or should be. This is a great secret of real liberty. Without this vigilance, constitutions and plebiscites may cover a brood of petty despots. The Crown is the chief of the executive, in the widest sense of the term ; and all the doings of the executive amongst us run in His Majesty's name. Originally all Origin and Extent of Civil Aiithority 41 administration was for military and fiscal pur- poses, money being the sinews of war. A primitive government had no more care of the public health than the War Office has of it now. Highways and bridges soon became matter of administration, because they were of impor- tance for the movement of soldiers. Ancient commerce followed the military routes. Coin- age had to be attended to, because the military tribute might be paid in coin. In England at one time there were thirty or forty different standards of weights and measures : unity had to be enforced, otherwise the government could not be sure of its dues, many military aids being paid in kind. The king, being a great landowner, regulated his royal estates: these regulations were copied by neighbours, passed into customs, and finally w r ere embodied in law. In times of dire calamity, such as the dearth of labourers after the Black Death, — compare our modern experience of famines in India, where from conquerors we have been turned into purveyors, — people fly to govern- ment as to the strongest, swiftest, and most present power to help them. The hand of government, once called in, is never wholly taken away again. The government learns to administer, and the people to expect administra- tion. Thus much of the gradual growth of 42 Political and Moral Essays that branch of civil authority, in our days so fertile of results, administration. § 24. To prepare the way for defining the extent of civil authority, I must be allowed some further theoretical enquiry into its origin. The origin of civil authority from nature and from God I have already considered. I have now to consider its origin as derived from man, I mean, from the consent of the governed. First, I observe, there can be no asking of the consent of mankind to decide whether they will have any government at all. Willy nilly, there must be civil government, or all human development is lost. The question is, who shall govern and under what forms? The question is, whether the consent of the gov- erned is necessary to the validity of the polity under which they live, and to the validity of the appointment of the living rulers who ad- minister that polity. Further to narrow the question, I do not enquire about the consent of the people's ancestors in bygone days, but about the consent of the living generation of people. Does civil authority, for its form and personnel, depend upon the continued approval of the people governed ? And that again may be a question of a bare actual consent, or of a hearty consent, approval, and good will. In point of actual consent, people cannot be gov- Origin and Extent of Civil Authority 43 erned unless they choose to obey. A man may obey because he has a pistol at each ear and a bayonet behind his back ; but that is not civil obedience, nor is it habitual obedience, it is obedience under an emergency that passes away. No government can be erected on a basis of mere coercion. You cannot, it is said, sit on bayonets. There must be some willing- ness of the people to submit, if the State is to be a State at all. It may be an unwilling willing- ness, an unwillingness that chooses obedience as the less of two evils ; but obedience it is and consent under the circumstances. Our actions are done and our practical elections made, not in the general but in the singular, under the circumstances that surround us at the time. 1 Velleity is in the general, but volition in the singular. The actual consent of the governed, then, is an essential condition of the exercise of civil authority. 2 § 25. The full consent and good will of the people is ordinarily requisite for the valid set- ting up of a new government over them : such 1 " An action is consummated and complete at the time in which it is done : therefore it must be called voluntary or involuntary accordingly as it is precisely at that time." Aristotle, Nic. Eth., III. mo a. 2 Force cannot dispense with persuasion, or the modelling of public opinion, where subjects are educated and refined ; nor even with such subjects can persuasion go wholly unsupported 44 Political and Moral Essays consent is not requisite to validate a govern- ment already established. I use the word ' ordinarily ' in the first clause of the proposi- tion, because of the extraordinary, though by no means uncommon, case of subjugation by war. When a people go to war unjustly and are overcome in the same, they may at times be made to pay for their injustice by the loss of their political independence. Otherwise one State must not absorb and annex a neighbour- ing State against its will, nor one section in a State subjugate the rest of the population without their free consent. The thing is not less wrong for having often been done in his- tory. But, it is asked, may not the consent of the people be dispensed with, or taken for granted, when they need governing, and are to be governed to their own advantage and amelioration of their lot, not of course without some reciprocal profit to the strong hand that subjects them ? An affirmative answer would justify many a coup d'etat and many a con- quest. Strongly in favour of affirmation is the Aristotelian docrine of VKOTe<; apy^eadai fxr) BeXov- criv {Politics, I. 1256 b), even to the hunting of them for slaves, much more to the reduction of them to political vassalage. He quotes with approval the line, — Justice subjects barbarian to Greek, i.e. uncivilised man to civilised. The stoutest Aristotelian, however, will admit that this prin- ciple must be carefully limited, or we shall have universal war. What but the sword can ultimately decide which is the superior race ? § 26. I have said the continued good will of the governed is not indispensable to the validation of a government already established. To shrink from this somewhat unpopular prop- osition is to license mutiny, rebellion, treason, revolution, anarchy. Speaking generally, an established government is justified in using force to maintain itself. Even against the whole people ? it will be asked. If the whole people means everybody in the State, the ques- tion is superfluous. If it means some strong section in the State, the American Union' answered the question in the affirmative in the war of 1862, and the British Government in the suppression of the Indian Mutiny in 1858. But is the government justified in maintaining itself against the majority of the entire popu- 46 Political and Moral Essays lation ? First, be it observed, the constitution of the country may be based on an acknow- ledgement of the ultimate supremacy of the will of the majority, and there may be legal provision for the expression of that will. In such a country the government is bound to bow to the constitutional demand of the ma- jority constitutionally expressed. Unconstitu- tional expressions, such as riotous public meetings, may be disregarded. Apart from positive facts of constitutional history, the con- tinued free consent of the majority is not the one source of valid civil authority. Authority q!oes not pass into usurpation as soon as ever the affections of the people are alienated from their rulers ; nor may a people always overturn any government which as a people they dislike. These are impracticable maxims. They do well on paper, but no government can or will tolerate the attempt to put them in execution. The sanctity, natural and divine, attaching to civil authority, attaches to the civil authority here and now constituted : otherwise it would be an abstract and vain sanctity, hanging idle in the air, remote from practice, and meaning nothing. By this it is not pretended that gov- ernments should neglect the trend of popular opinion. Quite the reverse. Such fatuity leads ever to fatal issues. A government has Origin and Extent of Civil Authority 47 higher duties than the maintenance of its rights over the governed. Government exists for the good of the governed. In view of that good, authority must not wring out of the subject every obedience that stern justice can impose. Government will often do well to abate some of its rights, to admit the people to a greater share of power, to grant some sort of magna charta or ' constitution.' The more share the people have in the government the better, so long as they are a capable people. In that proviso the difficulty lies. 1 § 27. Government may be severe, unreason- ably severe, without exceeding its powers. Subjects may remonstrate in that case, but in the last resort they ought to obey. When gov- ernment grows oppressive in excess of its con- stitutional powers, we are to consider whether these unconstitutional acts are isolated and ex- ceptional, or whether they are so frequent as to amount to a permanent aggression upon the liberties and rights of the people. A govern- ment whose aggression is permanent, and whose excesses of power are flagrant and continual, puts itself in the position of a usurper and be- 1 The ideal of government I think would be, a narrow apex of decisive authority (Kvpux apxv)> resting upon a broad basis of discussion (Xdyot), the limits to discussion being the two needs of expedition and of secrecy. 4& Political and Moral JEssays comes equated to anarchy. Still, attempts to subvert even a usurping government are wrong, when ill-concerted and unlikely to succeed. Such ineffectual risings only add fuel to the fire. 1 As they do not prosper, they will be called treason, and not fall far short of deserv- ing the name. Much better than recourse to such dubious remedies is it to have some con- stitutional organ provided for changing the government, whenever that begins to degen- erate into a tyranny. A long political devel- opment has provided us in England with such an organ, — "a government-making organ " Sir John Seeley calls it,' 2 namely, the modern House of Commons. The real government in England to-day is the Cabinet, which we habitually speak of as 'the government' The Cabinet depends for its collective existence on the House, and the House again on the con- stituencies. Thus, as the Times of April 7, 1880, observed, "We save ourselves the more virulent and destructive diseases of revolution, sedition, and civil war, by submitting to the milder type of a change of ministry." A twentieth century Roboam, were such a prince to arise amongst us, would not rend the king- 1 See, in my Ethics and Natural Law, the section on " Resist- ance to Civil Power," pp. 338-343. 2 Introduction to Political Science, pp. 193-227. Origin and Extent of Civil Authority 49 dom in pieces; another James II. would not be dethroned ; but the Cabinet of Evil Counsel would fall by a vote of ' want of confidence,' and His Majesty would be constrained to lend the lustre of his royal name to a ministry of moderate and popular men. § 28. There is no governing on sufferance. There can be no constitutional right of chronic revolution. Every government must hold its head some little height at least above the daily good pleasure of the governed. We cannot base civil authority simply and solely upon the consent of the governed, nor again upon need to be governed meeting with capacity for gov- erning. Civil authority, historically considered, arises in many various ways. Once established, and dwelling within the compass of its proper limits, it must in all conscience be obeyed ; for human nature is political and abhors anarchy. § 29. From the origin of civil authority I pass to the more difficult part of my subject, the extent of that authority. For complete- ness' sake let me point out one limitation of civil authority by the limits of the State to which it belongs. The limits of a State may be either personal or territorial : that is, the State may comprise such and such persons, wherever they live, or such and such a portion 50 Political and Moral Essays of the globe, with whatsoever persons live upon it. The consent of civilised times has tended to prefer the territorial limitation of States, not however without considerable regard to personal limitation, as processes of naturalisation and extradition treaties show. 1 No State can be denied such authority over travellers and resi- dent aliens as is necessary to the maintenance of public tranquillity. An invasion in war is a partial and temporary annexation. § 30. By ' authority ' in this dissertation I mean authority that is practically available without injustice. I do not mean the authority which one claims to have but cannot exercise, however reasonable and just the claim. Nor do I mean authority, however vigorously ex- ercised, if the exercise be unjust. On this definition Charles II. had no authority in England in the year 1657, nor at the same time, from Charles's point of view, had Oliver Cromwell any authority there either. 2 The two limits of authority, then, are ineffectiveness and injustice. I will point out some cases of limi- 1 ' Once a British subject, always a British subject,' is the saying. Civil authority extends over all who owe the State military allegiance. Military allegiance is the bond of the modern State, as kinship was of the patriarchal State. Yet still the sense of a common blood and ancestry, or as we say ' racial feel- ing,' binds a nation together and makes up one half of patriotism. 2 Except as a caretaker, in which sense Charles might have construed the title 'Protector.' Origin and Extejit of Civil Authority 51 tation by ineffectiveness. They are, immatu- rity of the State, excessive distribution, personal weakness, fundamental law. § 31. What has been already written on the historical origin of the State sufficiently ex- hibits the weakness of civil authority in the early stages of its development. There is much administration in the infant State, as there is also much activity in a child, but the adminis- tration is not orderly, scientific, regular, and centralised. For law, there are dooms and customs ; for judgment, blood-feud and wager of battle ; for policy, impulse ; for kingship, sometimes tyranny. This leads me to ask whether even the modern State is yet full grown. The active exercise of civil authority seems to be everywhere on the increase. Can it be that, as we speak of the polities of the twelfth century as immature, succeeding ages will tell of the unripe and imperfect civil organisation of the nineteenth century? In particular, how much of the ownership of land and capital, what control of commerce and of education, — education, I say, of boys and youths and men, — - will the State one day take into its own hands ? We had better not make ourselves ridiculous to posterity by prophesy- ing. I am not inspired to foretell the future, however I may have an opinion as to expedi- 52 Political and Moral Essays ency in the immediate present. Festina lente. Let the State go slow on these paths, and be- ware of doctrinaires. 1 § 32. A 'polity' may be defined 'the dis- tribution of civil authority.' Where authority is all concentrated in a single person, we have ' one man government,' or absolute monarchy. Sheer democracy would be the distribution of authority in equal shares to all adult males, or even to all adults. One special mode of distri- bution we see in ' local government.' The functions of local government are all derived from the imperial government, and controlled by it, and could on occasion be reabsorbed by it. Boroughs get their powers by Act of Parliament, and hold them at the pleasure of Parliament. The central government is always able to centralise more, if it pleases. Local government is, in fact, a department of 1 To the collectivist of the Fabian Society type, the State is still immature. The saying of Seneca, imperio Casar oimiia pos- sidet, singuli dominio, to the Fabian marks a distinction that shall pass away. In the final ripeness of States he expects ownership of capital and civil authority to coincide. From such coincidence strange consequences might ensue to the family. So long as the family holds its present position, the State can never gather into its hands the entire control of education, for this most natural reason, that none has such a presiding influence over the making of a child into a man as its father and mother, if they know how and choose to exercise it ; an influence which the State can neither abrogate nor command, unless, as I say, the family shall be made other than as we know it. Origin and Extent of Civil Authority 53 imperial government, an overflow and particu- lar application of sovereignty, not a distinct power. 1 At the same time, once put in com- mission, authority is not so easily resumed, in a parliamentary country especially. There is a limit, beyond which the exercise of civil authority will be hampered and weakened by 1 This holds where the unity of the State is established. The local authorities of feudal or semi-feudal kingdoms made up to- gether not so much a State as a federation. Dr. Gierke, Politi- cal Theories of the Middle Age, p. 84, speaks of " the age of feudalism, and the age in which the community appeared as a legal system of estates." Moral and quasi-personal unity marks a higher stage of political organisation. There was less of unity and a lower organisation in the mediaeval State than in the Greek City State. Politics had, in some respects, gone back from the point gained in classical times. But the Greek City State was full- blown, and had no future before it : while the large and cumbrous masses of mediaevalism had in them the potency of the modern world, a world at once better and worse than the mediaeval, but anyhow more vast, more complex, and more marvellous. The mediaeval State was a cluster of corporations : the modern State tends to become one society. This is a reversion to the Hellenic type. Another reversion is the wearing away of the distinction between the State and the people, or, what is much the same thing, between the sovereign and the people. This marks the advent of democracy. I may put it in this way, that the term 'people' is changing so as to connote less and less of subjec- tion and more and more of sovereignty. The people are ceasing to be 'subjects,' except when taken distributively. Similar was the connotation of 6 Srj/jios at Athens, and of populus at Rome. I speak of facts and received theories, leaving aside desirabilities and all that ought to be. Yet, whatever theory be received, Nature will ever assert her rule in practice, that they who actually direct and administer are the capable or the audacious few. 54 Political and Moral Essays any further step in the way of democracy, or any further development of local govern- ment. This I call ' limitation by excess of distribution.' § 33. A wide and important distinction sep- arates authority, or prerogative, from capacity. By capacity I understand here aptitude for bearing authority with dignity and credit, and wielding it to effect. All have remarked the well-earned increment of the credit and influ- ence of the Crown in the late reign. Queen Victoria was endowed with eminent capacity of authority. A government is lost when it becomes discredited. A discredited parlia- ment would be soon dissolved : a discredited ministry falls : but unhappiest of all mortals is the discredited autocrat. It is possible to be in office and not in power. Mark two men in exactly the same position, armed in theory with the same prerogative, how much the one man will do, how little the other does or can do. This is how absolute monarchy, — monarchy, I mean, where the single person has a free hand, and all law is the mere breath of his mouth, — passes into a practical absurdity. It takes a Caesar to wield such plenitude of power. If the autocrat is Caesar in name only, either the government goes on by rou- tine, or it falls into the hands of favourites, Origin and Extent of Civil Authority 55 or the chiefs of departments go their several ways independently. Limitation of capacity is a great limitation to all authority borne by man. § 34. In the sovereign assembly at Athens, any proposer of changes on certain reserved matters laid himself open to an indictment, known as the ypa(f>r) Trapavoficov. In another Greek State it is said that any such champion of repeal came forward with a halter round his neck : the halter was tightened if the motion was lost. In modern States generally, although not in England, there are 'fundamental laws,' or a written ' constitution,' with which the legislature may not meddle. The consent, however, of some definite persons, — at any rate, of the whole people, — can abolish any fundamental law, and set aside any constitu- tion, as on one dark day of disaster the Athe- nian assembly overruled the ypa(fir) Trapavojxcov. But an effort is required to such effect, and a motive strong enough to rouse the whole peo- ple. Failing such excitement, civil authority is tied up, held in suspense, impeded, and, therefore, according to our definition, dimin- ished, by fundamental laws. Hence Sidgwick speaks of a ' rigid,' as opposed to a ' flexible,' constitution. Rigidity has its advantages, but it may lessen efficiency. 56 Political and Moral Essays § 35. The activity of government is at its maximum in the worst times, unless indeed it be part of the evil of such times that the gov- ernment is unstrung and paralysed. When ' the Gaul is at the gates,' the hand of author- ity is untied and extended to its utmost reach. Short of deeds wanton and useless, it is diffi- cult to assign limits then to the power of the State over life and property. I do not say there are not limits, but they are hard to fix. The execution of Catiline forms a test case here. Was it not just, if necessary, though against the ordinary forms of law ? I offer no opinion. Necessitas facit fere ovinia Cczsaris. Happy the government whose hand is seldom thus strengthened by emergency. A wise ruler has no passion for governing. With the insane, the consciousness of power leads neces- sarily to the exercise of it. A strong wise man holds the greater part of his power and authority habitually in reserve. The spectacle of quiet times, slack administration, and spon- taneous prom > Lion of the public good by voluntary associations forms a pleasing con- templation. Something of it was realised in those sleepy old ecclesiastical Electorates on the Rhine, which gave rise to the proverb, " It is good living under the cross." § 36. The special province of civil author- Origin and Extent of Civil Authority 57 ity is not religion, not temperance, not chastity, not fortitude, not benevolence, but justice, un- derstanding by 'justice' the 'general justice' described in the Nicomachean Ethics, V. pp. 1 129, 1 130 a, that is to say, social virtue. Acts of other virtues the State can only command inasmuch as they bear upon society, and there- fore in some manner come under justice. Thus the State enjoins temperance, that a man be not drunk and disorderly in public; fortitude in a soldier, to fight for his country; chastity, to the exclusion of rape, bigamy, and, to some extent, of adultery and unnatural crime. There- fore it is said that the State commands acts of all virtues, but not all acts of virtue, not even all obligatory acts, if we speak of moral obliga- tion. Nor does the State ever enjoin the proper motives of each virtue : it is fain to be content with the external act, whatever the motive. 1 1 This is the meaning of the saying, de interim non judicat prtx- tor. The coercive jurisdiction of the State does not extend to motives, except in so far as motives are embodied in overt acts. The State cannot enforce loyalty of heart : it enforces loyal con- duct and, to some extent, loyal language. Loyalty of heart is a duty all the same. Treason would never be a sin in external act, if treasonable sentiments and desires could not possibly be a sin. But the enforcement of inward loyalty must be left to conscience and to the Searcher of hearts. No statesman, however, will neglect to employ the moral means of speech and persuasion for the kindling and propagation of the sentiment of duty towards the State. Cabinet ministers go about making speeches. Even 58 Political and Moral Essays Justice being essentially ad alteram, ' in rela- tion to some other person,' a man's private life and behaviour, as bearing directly and immedi- ately on himself alone, is not matter of justice, and is removed from State control. The mu- tual relations of husband and wife, of parent and child, are not absolute matter of justice, because the parties are not entirely other and other: there is not a thoroughgoing and com- plete moral distinction between them : the child is res parentis, and husband and wife are one flesh. That is to say, the domestic order is not entirely merged in the civil order. Inas- much, however, as husband and wife, parent and child, are distinct human beings, a certain measure of strict justice obtains between them, which comes under the cognisance of the civil courts, and those courts have the right of inter- ference ab abusu. § 37. Some rights are the creation of the State, as the privileges of the Bank of Eng- land. Other rights are not created by the State, but are safeguarded and determined in detail by it. These I call ' natural rights.' I may sufficiently describe them by saying that they are the same in all civilisations, and that it is everywhere the mark of a tyrannical gov- a military dictator publishes manifestoes to the army, the army under such a constitution being the people. Origin and Extent of Civil Authority 59 ernment not to respect them. 1 Such are the rights to life, to limb, to personal liberty, to the acquisition of property and the possession of it when acquired, the right to honour and reputa- tion, and to the exercise of religion. Except the last named, the State may withdraw any of these rights in punishment.' 2 § 38. It is the function of civil authority so to co-ordinate these rights as that they may work harmoniously in an organic whole, one man's natural right not marring another's. A natural right often needs ' determining,' that is to say, its precise extent needs to be fixed by civil law. Hereditary right furnishes a good instance. Nature requires, all civilised nations 1 " There is a system of rights and obligations which should be maintained by law, whether it is so or not, and which may properly be called natural." — Green, Works, Vol. II. p. 339. They might also be called ' rational. 1 In the language of Plato they are cpvaei 7] <£wt£«js ov-% i)ttov, e'nrep vov ye iari yevvrj/xara Kara \6yov opdov (Laws. X. 890 D). 2 I should call the principle of habeas corpus a natural right which the State cannot withdraw. Lettres de cachet, consigning a man on suspicion to the Bastille, and keeping him there for months without trial, were extravagances beyond the limit of civil authority. There was abundant precedent for them, it is true ; but I quote the example to show that neither the historical method, which yields facts, nor the legal method of precedent and decree, can work in isolation from the ethical method, which attends to the moral law. Civil authority is ever limited by morality, that is by opdos Aoyos, right reason reasonably applied. The State is no more licensed than the individual to behave irrationally. 60 Political and Moral Essays have acquiesced in, some measure of transmis- sion of property from parent to child. This vague generality is rendered express and partic- ular and practically operative by legal pro- visions. The babblings of nature become articulate speech in the mouth of the civil legislator and judge. No community could hold together on the moral law of nature alone, e.g. on the code of the ten command- ments. Natural law demands the further creation of civil law, that network of conven- tionalities which the State elaborates, partly out of custom, partly by enactment, — the cocoon within which the State is contained. § 39. The State in the maturity of its strength not only legislates, it also arbitrates between litigants. Arbitration is a permanent necessity. No code can be so distinct and clear as to settle automatically every dispute. Private arbitration goes some way, but it can- not bring the party appealed against into court, — the State itself at first had much difficulty in doing that: and private arbitration cannot enforce its award, — the State alone can. The early State was reluctant to undertake this arbitration : it was necessary to recur to some legal fiction of the king being a party to the quarrel. There remained the old-fashioned alternative of private war, a trial, not of justice, Origin and Extent of Civil Authority 61 but of strength. Every good government does its best to supersede private war. That was the aim of our Plantagenet and Tudor kings, in the days when the nobility were armed po- tentates. They did not fight much with one another, but at times a good deal about the king, for or against him. The nobility have been pacified, but not the mercantile classes ; and private war survives amongst us in the shape of strikes and lockouts. § 40. The State guards its own rights and the rights of its subjects by the punishment of offenders. It would be incorrect to describe punishment as the self-defence of the State against evil-doers. It were doing too much honour to the criminal classes to allow them the style and title of belligerents. War is be- tween equals, self-defence is against equals: but punishment is an act of jurisdiction exer- cised upon subjects. The Sword of State is borne before the king, denoting the right, in- herent in every State, called ' the right of the sword,' the right of inflicting capital punish- ment. Every sovereign authority has this power of life and death : no other than sov- ereign authority has it. 1 The State may tie its 1 7rap' yap i/xoi davaros, Agamemnon says (Aristotle, Politics III., 1285 a: the words are not in our Homers). Readers of Peveril of the Peak will remember the indignation of the Crown 62 Political and Moral Essays own hands by decreeing the abolition of capital punishment ; but the power which tied may at any time untie. " The slaying of an evil-doer is lawful inasmuch as it is directed to the wel- fare of the whole community, and therefore appertains to him alone who has charge of the community ; as the amputation of an unsound limb belongs to the surgeon, when the care of the welfare of the whole body has been en- trusted to him. Now the care of the common good is entrusted to rulers having public au- thority ; and therefore to them is it lawful to slay evil-doers, not to private individuals. . . . To do a thing for the public good that hurts no man, is lawful to any private person ; but if the doing be with the hurt of another, it ought not to be done except according to the judgment of him to whom it belongs to estimate what is to be withdrawn from the parts for the good of the whole" (St. Thomas Aquinas, Smmna, II- II, q. 64, art. 3). 1 The 'whole community' here lawyers at the Countess of Derby, who in 1662 sentenced one William Christian to death and executed him on the strength of the title ' King in Man,' then borne by the Earls of Derby. 1 Why then may not government stamp out bubonic plague as we once stamped out rinderpest, by slaughter of the first infected victims ? The answer is briefly, that no man may be exterminated as a beast, who does not liken himself to a beast by anti-social crime, of which point the State is judge. See my EtJiics and Natural Law, pp. 349, 350, and Aquinas Ethicus, Vol. II. pp. 40-42. Origin and Extent of Civil Authority 63 is the self-sufficient community, the State. The argument fails to apply to the father of a family, because domestic, fatherly, or paternal govern- ment is primarily for the good of the individual governed, as an individual. Speaking of what obtains ordinarily, or per se, not of what is per accidens, or incidentally, it is not good for the individual to be hung. A criminal is not hung for his own benefit, but for that of the com- munity, as the example of amputation shows. But the government which rules primarily for the good of the community and the general weal of the body politic, is civil, not paternal, government. Therefore the rod belongs to the pater familias, but the axe to the proconsul. § 41. There is no State of States. When States quarrel, there is none that can lay his hand upon both disputants and compel them to an arrangement. This is the drawback to international law, that there is no tribunal to enforce it, no sanction of punishment for the violation of it. I speak of things as they are, not as they might perhaps have been. State cannot punish State for a breach of international law, or treaty, or convention, or for refusal to abide by arbitration. Punishment is a function of authority: but a State is essentially sovereign, not under the authority of any other State, or combination of States. States cannot punish 64 Political and Moral Essays one another : they can only defend themselves one against another, — a very different thing. The self-defence of States is war, a self-defence of giants. The authority of a State in war is exerted over its own subjects, compelling them to prosecute the war according to their several conditions, paying the war-tax, and actually fighting in person, as the State shall see ex- pedient, meanwhile rendering no aid to 'the king's enemies.' This common concurrence is due to the unity of the State. Where the State is small, like the Greek City States, war be- comes a very present reality to all the citizens. Sometimes at Argos or Corinth a whole genera- tion of youth was mown down by the scythe of death in a single battle. They died for their country and at the bidding of their country, which authorised them to strike in its name, and in so striking to expose themselves to the sentence that all who take the sword shall perish by the sword. A war does not constitute all the inhabitants belligerents, but only such as the State shall definitely enroll, and shall in some manner signify to the enemy to be per- sons empowered to bear arms in the public cause. Audiant agrestes. § 42. The State should not be the only as- sociation besides the family, and the munici- pality, which was in ancient history the State. Origin and Extent of Civil Authority 65 Private associations must be permitted to flour- ish. The absorption of all private associations into the State, or the municipality, makes a good definition of Socialism, or Collectivism, in its most outrageous form. Not being Socialists, we shall be champions of the right of private association, as a right which the State should superintend and moderate, not suppress. Where public control is unneces- sary, or of dubious advantage, it should not be applied to such bodies. The State is strong by the energy and spontaneous activity of its individual citizens. Energies grow by exercise : spontaneity bursts out of freedom, and is apt to die of swathing bands. 1 At the same time 1 Plato's 7roXtTat are not ' citizens,' as that term is understood in the United States : they are salaried functionaries of State. Plato will not allow a citizen to be an artisan : the office of citizen is enough occupation {Laws, VIII. 846 D), though of this con- dition of exemption from private cares the philosopher is not without his misgivings, and labours to show that his endowed model citizen will have enough to do in the practice of virtue, under the pressure of the multitudinous vo/xot and Sikgu. I can imagine no better argument than a study, — unless it were an actual experience, — of the intolerable meddlesomeness of Platonic government to convince a man that some limit must be set somewhere to civil authority. The antithesis of statesman and philosopher reaches its height in Plato, most unpractical of geniuses, most visionary of politicians. It has been proposed, on the strength of passages like Rep. III. 403 B, C, vo/AodeTyjcrev; k.t.X. d 8k firj, if/oyov a/xovata<; Kal aTreipoKaXia'; vcjj£$ovTa, to extend the meaning of vd/xos to include public opinion. But D lato was quite aware of the difference between law and public F 66 Political and Moral Essays the State will sternly suppress any private association that exercises tyranny or intimida- tion, that foments rebellion, that sets aside lawful contracts, or levies what is tantamount to private war. The State will suppress such associations, wherever it is worth while making them conspicuous by that attention. 1 opinion (cf. Laws, V. 730 B, oct av fxr) vd/xos aW €7raivos TraiSeuwj/ Kai i/'dyos), and admitted that some matters were better left to the latter {Rep. IV. 425 B, C, D). He looked for the advent of a despot for the establishment of his vofj-ot {Laws, IV. 709 E sqq. ; V. 735 D). He defines the province of vo/aos {Laws, I. 631 B- 632 C). One of its functions was to 'invigilate' over old men in their cups {Laws, II. 671 B-E). In Laws, V. 746 A, B, C, Plato defends himself on the charge of being unpractical : his concern is with ideal excellence : he leaves practical men to attain it as nearly as they may through the rough-and-tumble ways of life. In Laws, VI. 773, he has the good sense to admit that physiologically desirable marriages cannot be arranged by law. He deprecates overminutc legisla- tion in Laws, VII. 788 A, B ; and in 823 A he says that the good citizen will obey counsels which are not made matter of law. On the other hand, he writes {Laws, XII. 942 A, B, C, a remarkable passage) as though he would carry the precision of military obe- dience into every detail of private life. It is well to remember, what Greek political writers did not sufficiently recognise, that there is other obedience and other authority besides civil obedi- ence and civil authority ; and no obedience and no authority can dispense a man from the necessity of being a conscientious and intelligent lord at home, or from the exercise of the virtue of prudence (St. Thomas, Samina, 2 a - 2 ae , q. 47, art. 12 ; Aquinas Ethicus, vol. II. p. 1). 1 On the subject of laws against private associations, I may observe that the majesty of law is ill served by provoking sober- minded and conscientious persons to turn law-breakers. Yet I would not deny that there is a certain wisdom in passing laws Origin and Extent of Civil Authority 67 § 43. Philosophy is capable of considering man in the abstract, away from any determina- tion arising from contingent facts of history. Such a contingent fact is Christianity. Chris- tianity is not a factor of human nature as such. This is sometimes expressed by saying that Christianity is supernatural. This abstraction enables us for the nonce to set aside the problem of Church and State. Naturally, man is a religious animal as much as he is a political animal. No main tendency of human nature can have its fulfilment except under some social organisation. If learning is to flourish among men, there must be learned societies : if religion, religious societies. Whether the political or the religious element of his nature lies deeper in man, we need not enquire ; nor again whether the one exigency can be satisfied without the other. Certainly the experiment has never yet been tried, of a political com- munity unsustained by any religion. It might issue in an explosion. Its history might be not meant to be executed, or keeping such laws, when passed, on the statute-book as 'a rod in pickle.' A statesman must do something to satisfy popular sentiment, even when unwise. A working government cannot afford to be overpunctilious about logic and self-consistency in all things. Where the laws are gen- erally wise and well administered, some little grimace of oppres- sive legislation, remaining or becoming a dead letter, will be no serious blemish on the majesty of law. Still, it is a blemish, and ought to be removed in time. 68 Political and Moral Essays wound up in one sentence, the fall of that house was great. Religion will last as long as politics. What then should be the attitude of the State towards religious bodies? Should there be one religious society, conterminous with the State, the ideal of the ancient polities, and of Queen Elizabeth and Archbishop Laud, as also of the Solemn League and Covenant men ? Or should there be a multitude of private so- cieties, competing with one another, the State acting the policeman to keep the king's peace between them ? Should there be any national religion by law established ? All these ques- tions of higher politics have two solutions, one theoretical and ideal, the other practical and suited to facts as they are. We welcome the solution at present obtaining in England as the best practical for our time. § 44. The academic question "whether the magistrate have or ought to have any com- pulsive and restrictive power in matters of religion," was gravely argued in a Council at Whitehall, December 14, 1648. 1 Ireton argued for the affirmative, appealing to the provisions of the Mosaic law. Goodwin re- ferred the case to the discretion of the people. 1 See the discussion in the Clarke Papers, edited by Mr. Firth for the Camden Society, from Mss. in Worcester College, Vol. II. pp. 71-131. Origin and Extent of Civil Antlwrity 69 " Magistrates," he said, " have so much power as the people are willing to give them." Nye took much the same line, saying, " Whatever a com- pany of people gathered together may judge tending to the public good, or the common weal, that they have a liberty to do, so long as it is not sinful." He appeals then to what I should call the principle of Voluntary Public Control, which he thinks may be extended to religion. The axiom that the people are the source and origin of civil authority, had a firm hold on the mind of all these anti-monarchical disputants. They professed to be recovering Anglo-Saxon liberties, buried under six cen- turies of Norman oppression. The leading debater was Ireton. Cromwell showed himself shrewd and practical. Ireton's ideal was aboli- tion of King and Lords, and a House of Com- mons elected every two years by electors having a certain amount of real property, — this House not to be omnipotent, there being certain powers reserved and not entrusted to them (Papers, vol. II. p. 177). Ireton failed to see, what Cromwell was presently to demonstrate, that such a House was too unwieldy and too unstable a body to govern in time of danger. § 45. Besides the proper and essential func- tions of civil authority, functions necessary to the conservation of any maturely organised jo Political and Moral Essays political society, there are other functions postulated by public convenience, which gov- ernment, imperial or local, may take up, if the people by general consent will have it so. This may be called the principle of Voluntary Public Control. It goes towards clearing up the diffi- culty which we all feel in fixing the exact bounds of civil authority, what the State may do and what it may not do in the way of abridging the liberty of the individual. 1 Ac- cording to this principle, there is an inferior and a superior limit to civil authority ; I mean, there is a minimum of civil authority which the maturely developed State can never forego, and there is a maximum which the same State can never exceed, it being the utmost fulness of power which any State can ever carry. Between these two limits civil authority is just what the people as a whole wills that it shall be. 2 The 1 Thus Mr. Jenks, " To dogmatise upon the proper limits of State interference would be pedantry of the worst type" {History of Politics, pp. 141, 143). State interference can have no legal limits, inasmuch as the State makes the law ; only physical and moral limits. It is more important to assert the existence of such limits than to trace them as though one were a member of a boundary commission. The principle of voluntary public con- trol has this advantage, that it is not too rigid for facts and futurities. 2 But in spontaneous admissions of State interference, e.g. in the matter of education, special regard should be had for the rights of minorities, where there is a strong minority against interference and tenacious of their liberty. Origin and Extent of Civit Authority 71 State thus becomes the organ of public opinion. There is a clear trend of public opinion to widen' further and further still the region of government control. We are imbibing Greek notions here. The ' shrinking of space,' as it is called, due to our rapid means of intercom- munication, brings into view possibilities in the Nation State, which formerly could have been contemplated only in the City State. We are looking to the State, and to educational bodies chartered by the State, and to other reforming agencies abetted by public opinion and statute law, to assume certain moralising and spiritual- ising offices, which in the Middle Ages were accounted proper to the Church. How far the State is capable of discharging such offices, we must wait to see. Thinking men are feeling the need of some further moral government of the masses of our population. Our people are getting out of hand. The truth is rising on the horizon of our experience, that spiritual freedom is not advanced by the extinction of spiritual authority. In the natural order of things the guardian of public morality is public opinion, or, as in this connexion it is called, the public conscience. The public conscience may empower the State to clothe with legal sanctions some rule of morality which otherwise would not easily fall within the cog- 72 Political and Moral Essays nisance of the State, — an axiom not to forget in considering the prohibition of indecent per- formances in public theatres and of the exhibi- tion of indecent pictures for sale. Such prohi- bition is vain where the public conscience does not support it : at the same time the prohibi- tion might do something to support the public conscience. Thus on the matter of the liquor traffic we find the public conscience confronted by a class interest: we have still hope of the State stepping in to good effect there. There is yet another traffic in frailty and sin, which might be better confined to regions where they will find it who go thither to look for it. And we must be vigilant against the spread of disease. But some evils are endemic in human society. § 46. To recapitulate. The origin and ex- tent of civil authority, considered ethically and historically, makes a tripartite theme : why such authority ought to be ; how it has gradu- ally come to be in various ages and places ; what is its extent? 1 The ethical side of the subject embraces the answer to these two questions : (Q. 1) Why must I obey the State? (Q. 2) What can the State command me to do ? 1 For extent, ' is ' and ' ought to be ' need not be distin- guished if we speak of the authority that is ' practically available without injustice ' (§30). Origin and Extent of Civil Authority 73 (Q. 1) I must obey the State, St. Paul says, for conscience sake (Rom. xiii. 5). Conscience bids me be a man, that is, not merely to rank as a member of the human genus, and come under the census as an item of population, but to lead the conscious, intelligent, active life of a man. That I cannot do in solitude : I mean the normal man cannot do it, the anchorite is out of our purview, rj Oiqpiov t) Oeos. Cut off from intercourse with his fellows, man is no more man, morally speaking, than the hand of a corpse can be called a human hand (Aristotle, Politics, I. 1253 a). Nor is the society of the domestic circle sufficient to bring man up to what man should be, unless that circle be one of an aggregate of similar circles, intersecting each other, and coalescing in the unity of a State. I may travel little out of my family cir- cle, but that circle itself is affected, humanised, and civilised, by other circles in contact with it, a contact only maintained in virtue of their civil union. The greatest recluse, a Carthusian monk, or a Poor Clare nun, or a retired colle- gian, would find the little society of convent or collegiate life a moral impossibility, were it not planted in a land of agriculture and commerce, of peace and order and State-administered law. Neither are recluses born of oaks or rocks: they are scions of families, linked to other families 74 Political and Moral Essays by ties both connubial and civil. I must then be a citizen, to be a man : at least I must be the subject of some State. I need not take an active part in politics, I need not be a member of the ruling class, but I must be an item in a system of rulers and ruled. That is why I must obey the State, because such is the condi- tion of the humanity that is in me, that I can- not develop as a man unless I fall into my place as subject of some State. § 47. (Q. 2) What the State can command me to do, is not such an easy question. The best answer, perhaps, is derived from consider- ing what the State actually does command me, or certainly would command me in readily con- ceived circumstances. The scholastic adage, Ab esse ad posse valet illatio, refers to physical, not to ethical, possibility. But we may apply the adage even in the ethical order, in contem- plating the action of a reliably good agent. What Cato actually has done, may be lawfully done, if we are to take Cato for a saint. I am satisfied with the government under which I have lived for more than half a century. I have never been wronged by it, nor do I think it likely ever to wrong me. 1 What that gov- 1 I take to myself what the laws of his country say to Socrates in Plato's Crito, 51 D-52 B. I quote the last words: "Nor did you ever undertake any other journey into foreign parts, as other Origin and Extent of Civil Authority 75 ernment commands and would command me, I take fairly to fill the area of control of the indi- vidual citizen by the normal State. With this standard before my eyes, I lay down the follow- ing functions of government, or categories of obedience due from the subject. (a) The State has the right to tax me, and that apart from my consent, so far as I am a subject, though not apart from my consent in so far as I happen to have some share in the gov- ernment. Whether I ought to have a share in the government, is not a question that can be answered on abstract grounds, arguments from the nature of man and so forth. It can only be laid down that I ought to have that share in the government which the constitution of my country assigns me. For the matter of taxes, I ought to be taxed constitutionally, with that measure of my own consent which the written or unwrit- ten tradition of my country supposes. But, be it remembered, when I vote taxes, or depute other people to vote them, I am acting as partial ruler : my duty as a subject lies, not in voting taxes, but in paying them. (b) The State may bid me take part in the administration of justice, whether to do men do, nor did any desire ever possess you to make the acquaint- ance of any other State or any other laws, but we were sufficient for you and the State which we constitute." j6 Political and Moral Essays justice upon others as juror or witness, or to have justice done upon my own person or goods as prisoner or defendant. (c) The State may punish my offences against the law by statute penalties, even the penalty of death. (d) The State may enroll me in its armies even without my consent in case of emergency, of which the State is judge. (e) The State may superintend me in any charge that I may have of others, that I do not grossly abuse the same to the detriment of their persons or goods. (/) All my contracts concerning things that have a monied value are amenable to the con- trol of the State, not arbitrarily to set them aside, but to provide for their orderly fulfilment, so far as there is legal evidence for the existence of such contracts. (g) It is an axiom of the casuists that we are obliged to succour a neighbour in extreme need, that is, when we can help, and our help is necessary to him for the averting of imminent grave evil. And if a neighbour, much more a parent. The needs of our country are to us like the needs of a parent. In a great emer- gency, the State can demand of its citizens every sacrifice and every effort, not immoral. In the siege of Carthage, during those last Origin and Extent of Civil Authority 77 months of resistance to the army of the younger Africanus, there was no particle of a Carthagin- ian's substance, no remnant of his energy, no drop of his blood, that his native city might not have called upon him to expend in her defence. § 48. A word further on the historical side of my theme. There is a national infirmity which, as recognised in ourselves, we call ' insularity,' the inability to see things except from the point of view of our own countrymen. Thus the Roman lawyers took Roman law to be law for all mankind, as though nature dic- tated whatever Rome decreed. We are apt to mistake the peculiar instincts of the English character for main laws of human nature. We forget that civil authority must be suited to civil capacity, which is not everywhere devel- oped as it is in England. English institutions will not bear transplantation in the fulness of their native growth to Sicily. When Ferdinand II. of the Two Sicilies, the much reviled ' Bomba,' in 1848, granted a parliamentary constitution to his subjects, the grant was any- thing but popular. Petitions from general and district councils and other administrative bodies, to the number of 2283, were sent up, pray- ing for the suppression of the new Constitution . 1 1 ' The last struggle of expiring bureaucracy, 1 believers in the parliamentary panacea will reply. I would ask them, what has j8 Political and Moral Essays and this Parliament, untimely born, died in a free fight in the streets of Naples. The moral is "to remember that the individualism of the Anglo-Saxon race, and the spirit of self-help and self-reliance which has built up the British Empire, are not to be found among the easy- going, pleasure-loving races of the South of Europe, which prefer to expect in every under- taking the initiative of the State, and allow it to guide them in all their enterprises." x Cli- mate, racial character, the fertility or barren- ness of the soil, the tendency of the people to agriculture or to commerce, make different con- stitutional histories. Also it has to be consid- ered whether the State is organised mainly for peace or mainly for war. A ' march State,' continually threatened by powerful neighbours, must maintain much of the discipline of a camp. Law, not Liberty, must be inscribed on its banner. Quite a peculiar build of vessel has been invented to stand the nip of the Arctic ice-pack. Types of governments are as various as types of ships. § 49. With our social cravings for commerce and empire, for wealth, education, and art, we become of the Turkish Parliament, last heard of about 1876-78? A nation may have the machinery of a free government and not know how to work it. 1 From a review of Mr. Bolton King's ' History of the Italian Revolution' in The Month for March, 1900. Origin and Extent of Civil Authority 79 take personal security almost as a matter of course. We are organized in large masses for mutual protection. The murderer of one poor girl is tracked and punished, trouble and expense not being spared to that end by those to whom the victim was an utter stranger. It was not ever so. A man's life was protected, and his death avenged, only by the small circle of those who knew him. There was a time when a foreign city was as a wild bees' nest, a thing to rob and destroy. Heroes gloried in the name of 7nroA.1V op #os, ' sacker of cities.' Ulysses and his companions, passing by the city of the Ciconians, do the right thing for tourists of the heroic ages : evda S' iyco tto\iv errpadov, wXecra 8' avrovs. 1 Governments were then organised, from the subject's point of view, not for liberty, not for empire, but for personal security and protec- tion. A city wall was something to cower and crouch behind: the city gate was barred to keep out the wolf. Much political history is written in city walls, the date and manner of their erection, the guarding of them, their grad- ual neglect, decay, and disappearance. Early 1 Odyssey, IX. 40. I think Dr. Merry's explanation unneces- sary, that the Ciconians had been allied with the Trojans. It was more than enough for Homer that they were not Greeks. Honest men in those days, as Thucydides, I. 5, tells us, freely confessed to piracy. 8o Political and Moral Essays ages were little favourable to the 'rights of man ' to a share in civil authority. Men often had no ambition to exercise such authority. Universal suffrage entered as little into their calculations as travelling by steam and electric- ity. All that the average man craved was to be safe from the marauder. To purchase safety, he was willing to be governed, to pay tribute, to serve as client and retainer, or even as serf. A demagogue would have been stoned by the hands which he pretended to set free, unless indeed his discourses turned on social griev- ances, the abolition of slavery for debt, and the cancelling of usurious bonds. Otherwise, men invoked strong despotism to shield them from the foreigner and the invader. Social security was based immediately on the strength of the house, clan, or petty city to which you belonged, not on commercial appreciation of peace, and na- tional defences. A sea of violence beat round every city wall, and almost round every home- stead. A foreigner once asked me at Windsor whether the castle was fortified. I told him that it was, but that the fortifications were out on the high seas. The enemy was at the gates in the olden time, and the means of keeping him out sadly ineffectual. Origin and Extent of Civil Authority 81 Part II. — Criticism § 50. Hitherto this dissertation has been mainly expository. The rest of it will be mainly critical of other writers. And first of Hobbes (De Give and Leviathan), Locke (Of Civil Gov- ernment), and Rousseau (Du Contral Social). Though these three writers differ widely from one another, they have enough in common to stand on one platform. They all place man initially in what Hobbes and Locke call ' a state of nature,' that is, an extra-social state, as though it were no part of the nature of man to live in civil society. They trace the origin of such society to an arbitrary compact. They all take ' nature ' to mean that which man is of himself, in exclusion of what he does for himself, even of what the law of his development im- peratively requires that he shall do. 1 Nothing is ' natural ' to these writers that involves any act of human will. They see no difference between a ' voluntary ' act and an ' arbitrary ' act of the will. To them the voluntary adhe- sion of men to the social system is an arbitrary adhesion, a pure conventionality, — vofxco [Lev, vcreL 8' ov : government is a conventionality, 1 See, to the contrary, John Grote's Examination of Utilita- rian Philosophy, pp. 169, 207, 208 (and above, §§ 7, &\. 82 Political and Moral Essays education a conventionality, so are clothes and good manners. 1 They fail to attach due im- portance to that something in human nature which requires man to provide himself with all these things. They do not see what is implied in the Wykehamite motto, ' Manners makyth Man.' Mr. Bosanquet well says in this connex- ion : " The peculiar naturalness of the primitive and simple is only an illusion " {Philosophical Theory of the State, p. 132). And Aristotle {Politics, I. 1252 b)\ "Nature means maturity: what each being is when its development is complete, that we say is the nature of each." Man develops into the citizen. The citizen, then, is the natural man, — man in the true state of nature. 2 1 Locke does not go quite so far as this. His ' state of na- ture ' is taken from what he fancies English society would be without government. 2 Modern languages have the convenience of two words, physical and natural, whereas Aristotle had only one, <}>v 405, 406. 2 I may remark that a too fervent worship of the ' Real Will, 1 unchecked by constitutional forms, would readily lead one to err with Plato and Cromwell. One should be loth to err, even Origin and Extent of Civ it Authority 97 ever, a noble passage in Plato's Laws, the child of his old age, which I take for an ex- planation and rectification of the somewhat crude utterances of his Statesman. I refer to Laws, IX. 874 E-875 D, the passage be- ginning: "Men must necessarily frame laws, and live according to laws, if they are not to sink to the level of the most savage beasts." The need of laws he refers to the fact that hu- man nature cannot be relied upon for a steady discernment of the best course and a steady will to take the same, the best course being that which makes for the public advantage, in the pursuit of which the good of the individual also is ultimately best realised. Absolute power spoils a man, and turns him to self-indulgence and self-aggrandisement. Hence the necessity of law and order and constitutional procedure. Still constitutionalism is, after all, a second-best sort of thing. If ever by some divine dispensation there were born a man on earth with a nature capable of these attainments (perfect political wisdom and self-control), he would stand in no need of laws to rule him : for neither law nor order is superior to knowledge, nor is it meet for mind to be subject in such authentic company. I may further add that an undue pressing after a formula, to hold good of all States, brings on a deadlock in political philosophy. To many anxious questions the one safe answer is, ' It depends on the constitution, 1 — written or unwritten. And constitutions vary. H 98 Political and Moral Essays or slave of any, provided it be genuine mind, truly free ac- cording to nature. But as things are, such a mind nowhere is found, except some faint traces : therefore, as a second- best course, we have to take to law and order, which has an eye for that which is for the most part correct, but not for the correct thing absolutely and in every case. There is some residual disadvantage in living under law, and constitutional obedience will bear hard at times for a time upon its best subjects. § 58. Two seventeenth-century Catholic writ- ers on government may be noticed here. Thomas White, a secular priest, resident in London, was the sun and centre of a small planetary system of religious controversy, as old libraries bear witness. He became intimate with Hobbes, and, a contemporary tells us, would "visit Mr. Hobbes and argue till the two were red in the face." The fruit, perhaps, of these discussions appears in a small volume which White pub- lished in 1655, Grounds of Obedience and Gov- ernment. He rejects Hobbes's state of nature, saying with much truth, " When I speak of a nation, methinks I speak of nature itself ' (Ground IX.). But, agreeing with Hobbes, he will not allow that reason has any motive for embracing the universal good other than the interest of self in that good. " Reason takes nothing to be good but what is good to Origin and Extent of Civil Authority 99 himself (Ground VL). "It is past dispute that for him who expects nothing in the next world there can be no rational motive of vol- untarily endangering his life for the common- wealth, if himself be not particularly interested in it" (Ground XL). This statement would rather be true if put the other way, that he would have nothing to expect in the next life, who had and could have no other rational motive than private interest for voluntarily ex- posing his life on behalf of his country. The fact of his being a mere creature of self and selfishness, devoid of all appreciation of uni- versal good, would argue him to be devoid also of intelligence, and consequently of all principle of immortality. 1 Reason in White's argument, as in that of Hobbes, is not sufficiently raised above the animal level. Hence I take excep- tion even to the following aphorism, plausible as it appears : " The proper natural way of gov- erning is by making the obeyer understand that it is his own profit which the action aims at, so as to make him work out of the inclination of his own will and the dictamen of his own un- derstanding" (Ground I.). The motive of civil obedience here indicated is not wrong, but imper- 1 Of most men we may say that their soul slumbers within them, and their intelligence is stunned by the noise of life. Still it is there. ioo Political and Moral Essays feet and informal. It is a useful motive for pacifying the recalcitrant and refractory: it is not the philosophic motive and scientific reason why we pay obedience to the State. The maxim is a pedagogue's maxim, not a statesman's, except of a statesman speaking popularly, as he will do at an election. The precise aim of the leg- islator, as distinguished from the parent and the schoolmaster, is not the good of this and that individual, but the common good. There- fore, if any individual obeys the State mainly in view of his own particular good, he is not obeying according to the exact drift of the law, he is not obeying as a citizen. He may readily complain that, though obedience be the best thing for him under the circumstances, and though he has some personal interest in the social order, yet that order befriends his wealthy and honoured neighbour much more than it befriends him. He becomes thus a lukewarm adherent of a State which he conceives to be organised chiefly in the interest of the better classes. He would like to see society remod- elled to his greater private advantage. He has not learnt to regard the State as an organism, and to rejoice in the life of the organism as a whole, and his own subordination to it. There is no real patriotism in that man's heart, no public spirit, too much individualism, too much Origin and Extent of Civil Authority 101 of the 'casual self.' The relation between society, once formed, and its rulers, White views as a contract of trust, thus falling in with the theory of Locke and the Whigs. " Such trustees are called governors" (Ground VII.). Like Locke, too, White is jealous of government interference. " Wherein, then, consists the liberty of every subject? In not being controlled in his private affairs. ... If he be molested in his domestic menage, otherwise than when the common weal demandeth his assistance, he is not free. But, for serving the common, it is the freest act he hath. It was his choice to elect it, it is his good to conserve it, and it will be his destruc- tion to infringe it " (Ground XV.). He says of the people in relation to their prince : " They entrust him with more than they understand ; and so his power is to proceed according to his understanding, though it cross theirs " (Ground XI.), words which remind us of Burke, To the Electors of Bristol. Rousseau would have writ- ten them, not of what the people entrust to the prince, but of what the individual gives in trust when he becomes one of the people. I end with two shrewd sayings of Thomas White. " As for the people, they are but a weak part, if the Governor be wise' (Ground XIII.). " Truly best signifieth that it were not only best if it had been fore-ordered, or if it were 102 Political and Moral Essays in practice, but that it be best to be brought into practice" (Ground XL). § 59. Francis Suarez, the celebrated theo- logian of the Society of Jesus, is the author of two elaborate legal and political treatises: one, De Legibus: the full title of the other is, Defensio Fidci Catholic cz advcrsus Anglicancz Sectce errores, cum rcsponsione ad ' Apologiam pro juramento fide 'litatis et Epistolam ad Prin- cipes Christianos ' Serenissimi Jacobi Anglice Regis: the date is 161 2. James I. had claimed to have his sovereignty immediately from God, and for his exercise of it to be responsible to none other than God, not therefore to his people, and not to the Pope. The truth in the king's allegation is this : (1) that sovereign authority in each State is of its own nature absolute and irre- sponsible, so far as States are concerned; State is not accountable to State, nor one private indi- vidual to another as such: (2) that sovereign authority is of God, inasmuch as it meets an exigence of mans rational nature ; and what- ever the rational nature of man exacts, that God as Author of nature commands, — all which truth we have already seen. But James I. erred in identifying sovereign authority with mon- archy, as though monarchy and sovereignty were convertible terms. Sovereign authority is not tied to monarchy, nor to aristocracy, nor Origin and Extent of Civil Authority 103 to democracy, nor to any other definable polity. Nature demands that there be a State, and the being of a State involves civil authority, and civil authority must have some mode of distribution, and the mode of distribution of authority makes the polity. Therefore, nature demands some polity, but not this or that polity in particular. Civil authority is a sacred thing, a morally imperishable thing. But cast it into the form of monarchy, it is not more sacred than it would have been in the form of repub- lican government. Neither monarchy nor de- mocracy is imperishable : in certain cases the one may lawfully give place to the other. 1 The point, therefore, which James I. and Charles I. and the Stuarts generally ought to have con- sidered, was whether by the precedents of Eng- lish history (for certainly not by natural law or special divine appointment) the government of England was an absolute monarchy, with the whole civil authority centred in the single per- son of the king, according to the precedents of Cassarism at Rome and Constantinople. § 60. The following quotations exhibit the theory of the origin of civil authority which Suarez proposed, in opposition to the king of England, and not altogether to the liking of the king of Spain. The point that Suarez 1 See my Ethics and Xatural Law, pp. 328, 329. 104 Political a?id Moral Essays labours to make is this, that civil authority is the gift of God immediately to the civil com- munity, or commonwealth ; and that the com- monwealth gives it to the king, who thus holds of God mediately, not directly : in other words, that government is the creation of God, but kings are the creation of men, — a speech of utter treason in the ears of His Sacred Majesty James I. " The supreme civil authority, considered in itself, is given immediately by God to men, when they are gathered into a State, or perfect political community. But that involves no peculiar positive institution, or gift altogether distinct from the production of human nature, but follows naturally, by force of the first crea- tion of that nature. Therefore, by virtue of the said gift, this authority is not in one person, nor in any special assembly of many persons, but is in the whole perfect people or body of the commonwealth. . . . For this civil authority is natural : since, without any inter- vention of supernatural revelation or faith, this authority would be recognised by the dictate of natural reason in the human commonwealth as altogether necessary to its conservation and equable arrangement ; which is a sign that such authority is in the said commonwealth as a proprium, following upon the nature, or crea- Origin and Extent of Civil Authority 105 tion and natural institution of the same. . . . All things that follow upon a nature are the immediate gift of the proper and immediate author of the same nature : but this authority is a proprium, following upon human nature as gathered into one body politic: therefore it is given immediately by God as Author and Provider of that nature. . . . For, by the mere fact of men being gathered together into the body of one State or commonwealth, the said authority results in that community with- out the intervention of any created will, and that with so great necessity that the result can- not be hindered by any human will, which is a clear sign that the authority is immediately of God. Hence evidently this authority, consid- ered precisely as emanating from the Author of nature by a manner of natural sequence, is not in any one person, nor in any special com- pany of persons, whether nobles or others whatsoever of the people, because by the nature of the thing this authority is only in the com- monwealth, inasmuch as it is necessary for the preservation of the same . . . that is to say, it is not immediately in any one definite per- son, as Adam, James, or Philip ; nor again by the nature of the thing does it need to be in one single person, and the same holds with due proportion of a Senate ; . . . because by dint 106 Political and Moral Essays of natural reasoning no reason can be devised why this authority should be determined to one person, or to a fixed number of persons, short of the whole community, rather than to any other number: therefore in virtue of nature's grant, it is immediately in the commonwealth only.' 1 1 Suprema pot est as c wilts, per se spec tat a, immediate quidem data est a Deo hominibus in civitatem sen perfectam communitatem politicam congregatis, non quidem ex peculiari et quasi positiva institutione vel donatione omnino distincta a productione talis natures, sed per naturalem consecutionem ex vi prima: creationis ejus ; ideoque ex vi talis donationis non est ho2c potestas in una persona, neque in peculiari congregatione multorum, sed in toto perfecto popido seu cor pore communitatis : . . . quia hoec po- testas politica naturalis est : quia nulla etiam interveniente supernaturali ratione aut fide, ex dictamine ralionis naturalis agnosceretur hare potestas in humana republica, ut illius conserva- tioni et csquitati omnino necessaria •■ signum igitur est esse in tali communitate ut proprietatem conseqiientcm naturam, seu creationem et naturalem ipsius institutiouem. . . . Quo? conse- quuntur naturam, immediate dantur a proprio et immediato auctore ejusdem natures : sed hare potestas est proprietas qua- darn consequens humanam naturam, id in unum politicum corpus congregatam : ergo datur immediate a Deo, ut est auctor et pro- visor talis naturce. . . . Nam, eo ipso quod homines in corpus unius civitatis vel reipublicar congregantur, sine interventu alicujus creator voluntatis resultat in ilia communitate talis potestas, cam tanta necessitate td non possit per vohmtatem humanam impediri: signum provide est esse immediate a Deo. . . . Atque nine etiam evidens est potestatem hanc pra'cise spectatam, ut est ab auctore natures quasi per naturalem consecutionem, non esse in una per- sona, neque in aliqua peculiari communitate sive optimatum sive quorumcunque ex popido, quia ex natura rei solum est hare potes- tas in commiuiitate quatenus ad illius conservationem necessaria est. ... Id est, non est immediate in una cert a persona, v.g. Origin and Extent of Civ it Authority 107 § 61. Suarez goes on to argue that govern- ment is of natural institution and divine ap- pointment, but not kingship: for were king- ship a divine thing, the royal power would be immutable, and comprehend all the inalienable prerogatives of sovereignty, — as indeed to James I.'s mind it did ; all countries would be monarchical and the succession to the throne would be everywhere the same. 1 Suarez holds the same doctrine in his treatise, De Legibus, where we read : " It follows that civil authority, Adamo, Jacobo, vel Philippo : neque etiam ex natura rei postulat esse in una singular! persona, et ide?n est cum proportione de senatu : . . . quia ex vi rationis naturalis nulla potest excogitari ratio cur hac potestas deter minetur ad unam personam, vel ad certum numerum personarum infra totam communitatem magis quam ad alium ; ergo ex vi naturalis concessionis solum est imme- diate in communitate (Defensio Fidei, III. c. ii., rm. 6, 7; cf. n. 18 ; also cf. De Legibus, III. c. ill., n. 6 ; c. iv., n. 2). 1 This is the point of the remark in John Selden's Table Talk, " Kings are individual, this king and that king : there is no species of kings. 1 ' Suarez assumes that civil authority is a constant quantity, which may be doubted, considering the historical devel- opment of that authority. Still, it is a good argument, ad hominem, as eliciting the real mind of the adversary. The Stuarts really seem to have held that royal authority was identical with civil authority, and was a constant quantity. Their phrase was " the inalienable prerogatives of the crown." Any concession that the king made to his subjects, e.g. in the Petition of Right, 1628, they regarded as a temporary indulgence, revocable at the king's pleas- ure. This fixed idea explains conduct in Charles I. which other- wise looks like bad faith. After all, the Stuarts did but go upon mediaeval conceptions of royalty, enhanced somewhat by the Ref- ormation, which confounded royal and papal prerogative. 108 Political and Moral Essays so often as it is found in one man or prince, according to lawful and ordinary right, has proceeded from the people and commonwealth either proximately or remotely, and cannot be held otherwise, consistently with justice" — a populo et communitate manasse, nee posse aliter haberi, ut justa sit} § 62. Suarez differs from Rousseau in mak- ing the people transfer their authority to some king or assembly, and that of necessity — they being too unwieldy a body to exercise it them- selves — an irrevocable transfer, without power of resumption; whereas, to Rousseau's mind, the authority remains inalienably with the peo- ple, any king, or senate, or ' prince,' whom they' elect, being the mere bailiff of the sovereign people. Also with Suarez, authority does not arise from a contract to live in civil society, but from the natural necessity of such society provided for by God. Lastly, with Rousseau, as with Locke, civil authority is the agglomera- 1 Suarez was not the author of the doctrine of the transference of power from the people to the prince. It appears in the mediae- val gloss, Quod principi placnit legis habet vigorem, titpote cuui lege regia, qiuz de imperio ejus lata est, populus ei et in eum omne suiim imperium et potcstatem coiiferat. See Dr. Gierke's Politi- cal Theories of the Middle Age, note 140, p. 146; and note 142, p. 147. The point that Suarez emphasised, contrary to mediaeval ideas, is that the princeps is not necessarily a king ; and again, that the transference of sovereignty need not be absolute and entire. Origin and Extent of Civil AutJiority 109 tion of individual powers; with Suarez it is a new creation resultant upon social union. § 63. Suarez's theory has had great vogue in the Catholic schools, where it has led and still leads to much disputation. The theory is admirable in the abstract. The objection to it is that it is not sufficiently historical. Suarez speaks as though the getting together of a people, and consequent development of authority, was the work of an instant. We do not profess to know how the ' horde ' came together, but it takes generation upon genera- tion to form the 'tribe,' and many more gen- erations before the tribe assumes the full majesty of the mature State. Again, in the sentence, " by the mere fact of men being gathered together into the body of one com- monwealth, authority results in that com- monwealth without the intervention of any created will," hardly enough is made of the truth, which the writer well knew, that men are not gathered together into the organic unity of a commonwealth without the inter- vention of some very determined human will or wills ; and that the will which gathers and organises is apt to rule. Still, I say, the theory is admirable in the abstract, as are the calcula- tions of mathematicians, where they assume uniform mediums, rigid rods, identity of tern- no Political and Moral Essays perature, constant barometric pressure, and generally a uniformity and persistence of con- ditions which is not found in nature ; all the while knowing well that these assumptions are not correct, and correcting their results accord- ingly upon observation when they come to practice. So, having in our hands a theory formed on the hypothesis of a primitive equality, we must make the necessary correc- tions in applying it to the inequalities which history reveals in the constituent materials of the first commonwealths. Suarez's theory then holds good as a ' first approximation.' It holds Iv toZs 6/xoiot? /cat Lcrois (Aristotle, Politics, III. 1288 a), in a society where every man is the peer of his neighbour. Perhaps the colonists who broke away from the British Crown under George III. came as near as ever men came to such equality among themselves. Then the history and constitution of the United States will be the best example of Suarezian theory put in practice. But, as Aristotle shows (Poli- tics, III. ad Jin), societies frequently start from great inequality of their constituent members, one order, or house, or individual being pre- ponderant above the rest, and engrossing the nascent political power, whether the rest will have it so or not. This leads Suarez himself to admit that in certain cases " the royal power Origin and Extent of Civil Authority ill and the perfect community may have sprung into existence together" {Dcf. Fid., III. ii. 19). In such cases civil authority never rested with the whole people ; and, instead of the people making the king, the king made the people, much as the queen bee makes the swarm. § 64. It may be said for Suarez that such portion of the population as falls below the level marked as laoi /cat 6{jlolol is really no organic portion of the State at all. Aristotle {Politics, III. 1278*2; IV. 1326 a) distinguishes between those who are citizens and portions of the State, and those, avev oyv ov yiverai ttoXls, whose presence is indispensable, but who yet are not citizens and not members of the civil community. The Saxons were put outside the political organism by their Norman conquerors. Wamba the swineherd had no place or func- tion there ; and politically the Saxon master went for little more than the Saxon ceorl. Many empires known to history have included large subject populations that were no organic portions of the empire within which they were imbedded and encrusted and preserved. This consideration yields a narrower extension of the term 'the people.' The Suarezian concept of the primitive equality of the earliest con- stituents of the State becomes more applicable to the people thus viewed. On the whole, 112 Political and Moral Essays judiciously explained and not driven home too rigidly, the Suarezian theory of the origin of civil authority appears to be as accurate as any theory can be accurate under the vast variety of circumstances that have affected that origin in history. Read by the light of history, it is an aristocratic rather than a democratic theory. Whether we consider the patriarchal society of early times, or the military constitutions which were erected upon the ruins of the Roman Empire, ' the people ' with whom any bestowal of authority could rest were a select few. Not all hangers-on of a tribe were tribesmen. Not all residents in a city were citizens. When a band of warriors, led by the leader of their choice, 1 conquered a land and possessed it, they disfranchised the ancient inhabitants. They raised the man of their choice upon their 1 The comitatits of Caesar (De Bello Gallico, III, 22) and Taci- tus (Germania, XIII., XIV) ; see Bishop Stubbs's Constitutional History of England, pp. 24, 25. There was much Visigothic blood in Spain ; and I believe Suarez to have been not uninflu- enced by this tradition of the comitatus, which certainly took great hold of St. Ignatius Loyola and of the Society which he founded. Cf. Mr. Jenks, History of Politics (pp. 71-74) : "The origin of the State or political society is to be found in the devel- opment of the art of warfare. ... A State is founded when one of these host-leaders, with his band of warriors, gets permanent control of a definite territory of considerable size. 1 ' This, I think, may be called the Suarezian theory recast, in view of the history of Europe a.d. 500-1500. Origin and Extent of Civil Authority 1 1 -> .■> shields : he led them to victory, and they made him king. The former proprietors of the soil had no more voice in the election of the mon- arch than they had in the revolution which overthrew their patriarchal polity, and set up in its stead the new militarism. The king, the electus, as he is called in the Latin coronation services, — and indeed he owed his position to the choice of his people, that is, of his warriors, — gradually found means to render the crown hereditary in his family. 1 Thus hereditary right, and even ' divine right,' sprang up in the course of generations. When Suarez wrote, the doctrine of divine right flourished exceed- ingly, in England, in Spain, and in France. The writings of the great Jesuit theologian re- called monarchs to the rock whence they were hewn, and to the hole of the pit from which they were dug out (Isa. li.): it told them that they were of the people, of the fighting-men whom their ancestors once led, and that this people had originally placed the orb and sceptre in their hands : royalty and the insignia and pre- rogatives of royalty were not, like Numa's ancilia, sent down straight from heaven. Civil authority and royal prerogative are not one in 1 Tacitus's remark (Germam'a, VII), reges ex nobilitate, duces ex virtute summit, shows the patriarchal hereditary principle and the military elective principle working side by side. 114 Political and Moral Essays essence : monarchy and government are not identical. The State must be, the king may- be. The polity may be this or that, but there must be a polity, though there need not be a monarch. § 65. I pass to some consideration of T. H. Green's Principles of Political Obligation, and Mr. Bosanquet's Philosophical Theory of the State} And first I note with pleasure in these works what I take to be a sounder view of freedom than obtained thirty years ago, when Mill, On Liberty, was in vogue. " The good will is free, not the bad will," says Green (P. P. O., ed. 1895, p. 15). This does not mean that the evil will does not choose for itself and incur responsibility : it means that the evil choice makes for the subversion of the ' true self ' of the chooser, a subversion which none would go about, had he not surrendered himself to some delusion : but delusion, even culpable and vol- untary, makes against freedom, so far as free- dom is a privilege and a thing to value. The freedom not for good — overestimated by Mill and the school of Locke — is happily described by Mr. Bosanquet as " a maximum of empty space, to be preserved against all trespassers, round every unit of the social whole " (P. T. S. y p. 124); and again, as "the empty hexagon 1 I refer to them as P. P. O. and P. T. S. respectively. O right and Extent of Civil Authority 115 round each individual' (id., p. 196); and again, " an arrangement by which, at the sacri- fice of some of its activities, it (the individual) is enabled to disport itself in vacuo with the remainder" (id., p. 125). It is not the aim of the State to secure to each of its citizens as much of the liberty of a Robinson Crusoe as is compatible with their living together and hav- ing dealings with one another. This, on the plain ground that Robinson Crusoe represents a man under misfortune, no less under misfor- tune than a patient in a hospital. He is a type of anything but the normal and natural man. Normally and naturally, man is a member of the organism called the State. 1 Man out of society is in a manner a dead man, only called ' man ' by courtesy.' 2 The true desirable liberty of the individual, then, is that which befits him as a healthy member of the State, and enables him heartily, earnestly, and with intelligent interest to co-operate towards the common good; not that which allows him to play his pranks and approximate to the style of the 1 Or at least dependent on the State, there being, as I have just said, following Aristotle, ' inorganic elements ' in a State. 2 "When the man as a whole is undone by death, neither foot nor hand will remain otherwise than nominally : we speak of the hand of a corpse as we might of the hand of a marble statue " (Aristotle, Politics, I. 1253 a). 1 1 6 Political and Moral Essays " monarch of all I survey." 1 The ideal citizen is not an absolute sovereign in reduced circum- stances, or a despot with his claws cut. The ideal citizen is one who has found his proper place in an organic body, and therein bends his powers to the common good. His rights are the endowments which fit him for his social position, deprived of which, not only he would be worse off, but the State would be worse off too by the loss of his public services. It follows that many rich men are not ideal citizens. It does not, however, follow that they should be deprived of their wealth : for the public good requires this indulgence, that in every class, high and low, some unfit members be tolerated. A man should not be forced by the State to do absolutely all that he ought to do. Moral duties, as such, cannot be enforced by law, because they involve dispositions. Legal com- pulsion, carried too far, induces atrophy of moral dispositions. Thus excessive poor-rates dry up the springs of private charity. Hence Green lays down this rule of limitation to State interference : " Those acts only should be mat- ter of legal injunction, or prohibition, of which the performance, or omission, irrespectively of the motive from which it proceeds, is so neces- 1 " In truth, there is no such right to do as one likes irrespective of society" (Green, P. P. O., pp. 109, no). Origin and Extent of Civil Authority 117 sary to the existence of a society, . . . that it is better for them to be done, or omitted, from that unworthy motive which consists in fear of legal consequences, than not to be done at all ' (P. P. 0. y pp. 38, 39). This maxim has to be qualified by the observation that a legal sanc- tion sometimes develops and directs, strengthens and guides, the public conscience. Law is not always operative in the way of slavish fear. Coercion does not always supplant worthier motives. It does or it does not, according to the manner of its application and the persons to whom it is applied. Legal pressure may help the growth of a habit of spontaneous good- ness, provided such goodness be recommended at the same time by other considerations proper to itself. Still, there is a danger, as Green points out, of the legally must suffocating the morally ought, a danger to be considered by Collectivists, who would abolish the upper class that now is, and the social function of the upper class, supplanting all that by a legally compelling and legally compelled bureaucracy. 1 § 66. In days when so many earnest-minded men differ entirely as to the scope and aim of human existence, it is a boon if we can discern 1 The endeavour of every one in a socialist commonwealth would be to get into the bureaucracy, as now men strive to be rich. The bureaucrats would be the upper classes. 1 1 8 Political and Moral Essays any break in the clouds of dissension and doubt, any omen of a reconciliation to be worked out perhaps in the twentieth century. It is an omen of especial interest, when the advance-guard of modern thought, of which we may consider Thomas Hill Green a standard- bearer, proclaims important conclusions in political philosophy identical with some of those advocated by that time-honoured teacher of mankind, the Catholic and Roman Church. I refer particularly to the Encyclical Letter of Leo XIII. on Human Liberty, issued June 20, 1888. Leo XIII. there distinguishes "physical freedom," or what Green (P. P. O., p. 9) calls " self-determination simply," from " moral free- dom," which Green calls "self-determination according to the true idea of self," upon which he adds, " the good will is free, not the bad," (id., pp. 9, 15). The Pope observes that, as sickness is a sign of something good, namely of life, so the fixing of the will upon unworthy objects is a sign of free will, a good thing in itself. But perfect life excludes sickness, and a perfect free will is inconsistent with unworthy choice. 1 Hereupon His Holiness quotes some 1 Green's words (P. P. O., p. 14), " Given the man and his object as he and it at any time are, there is no possibility of the will being determined except in one way,' 1 are hard to understand otherwise than as a repudiation of all that Catholic divines under- Origin and Extent of Civil Authority 119 apposite words of St. Thomas : " Everything is properly that which its nature fits it to be. 1 When, then, a thing is moved by some extrinsic and foreign cause, it does not work according to itself, or organically, but under the impression of another: such working argues a servile ne- cessity. But man according to his nature is rational. When, then, he moves according to reason, he moves of his own proper motion and works according to himself, which argues liberty. But when he does wrong, he swerves from reason in his work ; and then he may be said to be moved by another, and to be held within bounds prescribed by a foreign power; and therefore he that doeth sin, is the servant of sin? 2 We have it, then, that physical freedom is the freedom which a man has by the fact of his being a man at all ; moral freedom is the freedom that a man attains to by becoming the man that he ought to be. stood by 'free will.' But the matter belongs to psychology, not to political science. 1 Cf. the meaning of tcAos and tcAcios, and of <£vtns as being the process by which a thing grows to its tc'Ao?. 2 Umujiquodqae est illud quod convenit ei secundum naturam. Quando ergo movetur ab aliquo extraneo, non operatur secundum se, sed ab impressione alterius, quod est servile. Homo autem secundum suam naturam est rationalis. Quando ergo movetur secundum rationem, proprio motu movetur, et secundum se opera- tur, quod est libertatis: quando vero peccat, operatur prater rationem, et tunc movetur quasi ab alio, retentus ter minis alienis : et ideo qui facit peccatum, servus est peccati (Joan., VIII. 34). 120 Political and Moral Essays § 67. Man's "working according to himself" would be called by Green and Mr. Bosanquet his realising his " real self." That he cannot do in isolation. True individuality, Mr. Bo- sanquet well says, is not isolation. The indi- vidual finds his ' real self ' only as the member of a community, governed by law, — which law is the expression of the ' real will,' or right will, of that community, in view of the good of the organic whole, and of the individual as a con- stituent of that whole. The average individual in his ordinary moods is not to be mistaken for his ' real self.' " In order to become our- selves, we must be always becoming something which we are not " (P. T. S., pp. 125-126). We must put down " the rebellion of our casual private selves " (id., p. 127) ; the " centre of grav- ity of self " must be " thrown outside " (id., p. 155), not outside however of the true self, for that would be to suffer annexation and be led into slavery. Rousseau, if he returned to this world, would marvel to see himself ' translated ' 1 under the hands of Mr. Bosanquet (P. T. S., pp. 144 ff.). But I find no evidence that Rousseau's eyes were ever lifted up to heights above the ' casual private self ' and a numerical majority of such hap-hazard beings. 1 " Bless thee, Bottom, bless thee, thou art translated! " (Mid- summer Nighfs Dream, III. i.) Origin and Extent of Civil Authority 121 § 68. A reperusal, however, of the Contrat Social has convinced me that I have scarcely done justice to Rousseau hitherto. Jean Jacques, optimist and romanticist, sighed after an ideal State, a typically good people, or, as he said, uu peuple de dieux, amongst whom things could not but go well ex hypothesi. He is optimistic and pragmatical by turns. Some things he lays down in disregard of the wickedness and folly of mankind : at other times he stands in rueful contemplation of facts as they are. The ' gen- eral will,' according to him, is the constant will of all the members of the State, together willing their common interest, willing it too without any mistake of the quarter in which that interest really lies. That cannot be called the general will, which is not guided by an enlightened judgment. Le peuple (ideally con- sidered) veut toujours le bien, mais de lui- meme (actually considered) il ne voit pas toujours. La volonte generale est toujours droite (when it is not right, it is not the general will), mais le jugement qui la guide nest pas toujours eclaire. When a law is proposed, the real question at issue is whether the law be in conformity or not with the general will (here assumed to be fixed upon the general interest). Conformity with the general will is the precise aim of each citizen in voting for 122 Political and Moral Essays or against the law. If he finds himself in a minority, he discovers that he has been voting unconsciously against himself, in voting against that general will in which his own will is bound up. He rejoices to have his mistake rectified, and the general will revealed and made law by the voice of the (sapient) major- ity. All this supposes that the citizens as a body do will the common good, and that the majority at least are wise enough to discern it. But in a corrupt State the general will is no longer the will of all. The will of all there is an aggregate of individual wills, severally seeking their private interests in the first place, and in the second place seeking the public good so far as it does not run counter to those private interests. These private striv- ings in opposite directions may neutralise one another : there remains as a resultant the resid- uary will of the general good, but how feeble that will be ! Party combinations may secure a majority in the interest of party. The vote of such a majority is no longer the general will, but a private resolution : Vavis qui Vemporte nest quun avis particulier. Thus the general will — ideally speaking, " constant, indestructible, always right " — is unrecognis- able in practice. A majority vote is no indica- tion of it. The general will may be the will of Origin and Extent of Civil Authority 123 the wise and patriotic few, against the factious and foolish multitude. The general will is, in fact, the will of the common good, whosoever's will that may be. But what partisan does not profess to be animated by the most transcen- dent wisdom to discern, and the purest desire to compass, the common good ? There are "six Richmonds in the field," half a dozen general wills. A sovereignty so difficult to recognise cannot be admitted by the philoso- pher as promising a practical polity. Clear and incisive as is Rousseau's language at first reading, he is found upon closer study to be involved in that swamp of perplexity into which Mr. Bosanquet so manfully plunges to his rescue. See Contrat Social, 1. 2, chs. 3, 6 : 1. 3, ch. 4: 1. 4, chs. 1, 2. § 69. The general will, nevertheless, is a con- sideration of supreme importance to the states- man. It is something of a manufactured article ; and he may have, nay, should have, some hand in the manufacture. The general will is dis- tinct from the general advantage. The general will is the will of the majority of persons in the State, most influential and best capable of judging: it is the will of this enlightened majority bent upon what they take to be for the general advantage. Such a general will exists in various degrees of strength, and in 124 Political and Moral Essays some countries scarcely at all. The objective general advantage is not a thing to insist upon imperiously when the general will runs counter to it. A lesser good that the people will take to kindly is a better good for them than a superior advantage forced down their throats. Nevertheless wrong-headed and unconscionable people must at times be saved by force. 1 § 70. These casual creatures Mr. Bosanquet dismisses, and sets up to reign in their stead what he calls the " Real Will," or what an ordinary person would call the 'ideal will,' or perhaps the ' interpretative will ' (cf. Plato, Republic, I. 340), meaning what would be the will of the individual and of the multitude under ideal conditions of wisdom and good- ness. All which exposition may be accord- ins to the ' real mind ' of Rousseau : but, I fear, much transcends the actual mind of Jean Jacques, apparent in his writings, and read there by his admirers, the men of the French Revolution. Like Shelley, Jean Jacques was a very ' casual ' mortal indeed, the sport of whims and fancies and varying moods. He was a man of genius for all that, and, like other geniuses, suggests much that his own under- standing never clearly discerned. § 71. It may be asked, why this phrase, 1 See Cromwell's view quoted on p. 96. Origin and Extent of Civil Authority 125 1 real will ' ? The answer I take to be as follows. The great reality in the view of the sticklers for ' real will ' is one universal consciousness, whereof actual individual minds are feeble representations. The universal conscious- ness discerns and desires whatever is good for the whole, and for each individual as part of the whole. No will ever desires any private good inconsistent with the good of the whole, except under some ignorance or misunderstand- ing. 1 Thus the appeal lies from Philip drunk to Philip sober. From drunkenness to sobriety is an advance in reality. From the particular to the universal consciousness is also, in this view, an advance in reality. So too is the transition from the private to the general will. The ' gen- eral will ' is the more real of the two. Only,- be it ever remembered, this general will is not necessarily the will of the majority. It is the rational will, and that may be the will of a small minority. Mr. Bosanquet and Green protest against the method of simple enumeration of heads for purposes of popular suffrage. Thus Green (P. P. O., pp. 109, 1 10), after saying that law is the expression of a general will, contin- 1 An assertion strongly backed by Plato, still very debatable, and involving a point of great subtlety in the theory of the free- dom of the will. It is discussed by St. Thomas Aquinas, Contra Gentiles, III. ch. 10. 126 Political and Moral Essays ues : " If the common interest requires it, . . . neither can its enactment by popular vote enhance, nor the absence of such vote diminish, its right to be obeyed." ' Mr. Bosanquet would even go the length of taking for his social unit, not the actual individual, but " appercipient svstems," or correlations of thought which one man shares with another." Each man has his part in many such systems. Thus the head of a college, who had shares in a gold mine, and was the father of a family, would embody portions of at least three appercipient systems. The share in the franchise allotted to such a many-sided personage should be as three to one, compared with the share of a poor solitary student.^ § 72. Ancient dualism and modern mon- 1 What authority then has the popular vote? - This is a curious reversion to a primitive position. " In the infancy of society . . . men were regarded . . . not as indi- viduals, but always as members of a particular group : . . . nor was he ever regarded as himself, as a distinct individual " ( Maine, LaiL'. p. 183). 8 In his short paper, On the Reality of the General Will (p. 331). Mr. Bosanquet writes: "We may identify the general will of any community with the whole working system of domi- nant ideas." Then the individual into whose composition a larger number of dominant ideas enter has by right a prepon- derant share of political power. More thought, more authority. There remains a difficulty as to how far the dominant ideas of any given epoch are likely to be rational ideas. Elsewhere (/'. T. Si) Mr. Bosanquet has told us: "The general will must be the rational will, even though people are not aware of it. 1 ' Origin and Ex ten I of Civil Authority 127 ism, so far as they recognise a Divine Mind, both agree in constituting that mind the stand- ard of all sound thought and wise volition, so that not the actual wills of erratic individuals, however strong a majority they make, but the will which conforms to the standard mind, so far as such conformity is ascertainable and effective, should rule the State. Without ac- cepting Mr. Bosanquet's psychology, without being prepared to go all lengths with Hegel, I accept this somewhat conservative conclusion, that the general will which ought to be su- preme is quod major et sanior pars communita- tis vult, as the canonists say, — the rule in fact of intelligence, not of numbers. So also Leo XIII. lays down in his Encyclical of April 20, 1884. 1 1 Pares inter se homines esse universos nemo dubitat. si genus et natura communis, si finis ultimus unicuique ad assequendum propositus, si ea quce inde sponte fluunt jura et officia spectentur. At vero quia ingenia omnium paria esse non possunt, et alius ab alio distat vel animivel corporis viribus,plurimaeque sunt morum, voluntatis, naturarum dissimilitudines, idcirco nihil est tarn re- pugnans rationi quam una velle coniprehensione omnia cotnplecti, et Mam omnibus partibus expletam cequabilitatem ad vita civilis instituta traducere. Quemadmodum perfectus corporis habitus ex diversorum exist it juncture/, et compositione membro/'um, qua forma usuque differunt, compacta tamen et suis distributa locis complexionem efjiciunt pulcram specie, fir mam viribus, utilitate necessarian! : it.i in republica hominum quasi partium infinita propemodum est dissimilitudo : qui si habeantur pares arbitri- umque singuli suum sequantur, species erit civitatis nulla deterior : si vero dignitatis, studiorum, artium distinctis gradibus, apte ad 1 28 Political and Moral Essays § 73. I am less satisfied with Mr. Bosanquet's attempt to revivify Rousseau's celebrated phrase, " Each individual, uniting himself to all, shall obey none but himself " {Contrat Social, I. 6). Mr. Bosanquet writes (P. T. S., p. 144): " The claim to obey only yourself is a claim essential to humanity ; and the further signifi- cance rests upon what you mean by ' yourself.' ' Let us pursue the meaning of 'yourself under Mr. Bosanquet's guidance. From the outset it is clear that he means, not what the plain man means by the term, but something much more transcendental. He tells us (P. T. S., pp. 149, 150): "The imperative claim of a will that wills itself is our own innermost nature, and we cannot throw it off. This is the ultimate root of political obligation. ... It is such a real or rational self that writers after Rousseau have identified with the State." ' Yourself ' then means ' your better self,' in fact, ' your reason ' : you obey your own reason in obeying the State. So far we are agreed : it is an elementary truth, though not much to the mind of Rousseau, who makes of civil society an arbitrary conven- tion, not dictated by reason. Whether you obey your own reason only in obeying the State, is a much larger question, involving, what is not to commune bonnm conspirent, bene constitutes civitatis imaginem referent cotigruentemque naturce. Origin and Extent of Civil Authority 129 be expected here, an entire examination of the Kantian ' autonomy of reason.' The plain man will ask: Do I not also obey God ? and what is the relation of my reason to God ? Such questions must stand over. But I am at a loss to understand how my " real or rational self " is " identified with the State," as Mr. Bosanquet has already told me ; and again he speaks (P. T. S., p. 154) of "the identification of the State with the real will of the individual in which he wills his nature as a rational being ; in which identification we find the only true account of political obligation." This is a great saying, and very much to our purpose, if it be true. But it is also a hard saying. Are ' the State ' and ' the real or rational will of the individual ' convertible terms ? Is it then impossible for the real or rational will of the individual to disapprove of the policy of the State ? I should say, moreover, that the real or rational will of the individual extends to many things in heaven and on earth which are not comprised in the State. The State is of the temporal order, but man has eternal inter- ests. Even in this world man has domestic interests in the bosom of his own family, and intellectual interests within the arcanum of his own thoughts : to call these ' political in- terests ' would be, not an enlargement, but a K 130 Political and Moral Essays distortion of view. 1 There is more than the citizen in the individual man. Man, adequately considered, cannot be regarded as standing to the State in the mere relation of a part to the whole. 2 § 74. Further, I am at a loss to understand what State Mr. Bosanquet has in mind. He can never have meant to identify any and every State known to history with the real and better self of the individuals composing it, — France, for instance, under Louis XV., or Austria under Joseph II. He must distinguish ' the State ' from any actual bad government that may have gained the upper hand. But remove the government, and where is the State ? There is no longer any tangible body left to philosophise upon. Even a whole 1 Mr. Bosanquet, I feel sure, would not call them ' political interests.' 2 " Man is not subservient to the civil community to the extent of his whole self, all that he is and all that he has, 1 ' — homo non refertur ad communitatem politicam secundum se totum et secun- dum omnia sua (St. Thomas, Summa, I— II. q. 21, art. 4, ad 3). This I take to be a very pregnant saying. It cannot be denied that the best work of the artist, of the mathematician, of the phi- losopher, — not to say of the saint, — is done without any con- scious reference to civil society and away from civil control. Even allowing, with the first French Revolution, that the two terms, 'man' and 'citizen,' have the same extension, or (as Mill says) denotation, yet we must add that greater is the intension, or connotation, of 'man' than of 'citizen.' Rousseau (Coutrat Social, 1. 2, ch. 4) comes very near to admitting this. Origin and Extent of Civil Authority 131 people may have become corrupt, as probably the people of Constantinople were corrupted before their city finally succumbed to the Mos- lem. How shall any one find his real will, his better self, in the whims and caprices of a corrupt multitude ! Phocion evidently saw no reflection of his better self in the mind of the Ecclesia at Athens. We have as much reason to be on our guard against the 'casual State,' and against ' the average people in its ordinary moods,' as against " our casual private selves," and against " the average individual in his ordinary moods," who, Mr. Bosanquet warns us (P. T. S., pp. 125, 127), "is not to be taken as the real self." We are referred for " the real will of the individual," or " the real self," to "the State," — evidently ' the real State,' which will be found non in fcece Romuli, sed in repiiblica Platonis, and is, I fear, as visionary a thing as the Republic of Plato. § 75. Plato's words at the end of the ninth book are apposite : " You mean, in the city whose constitution we have just drawn out, the theoretical city (777 eV Xoyois Kei/xeV^), for surely I ween it exists nowhere on earth. Well, said I, in heaven possibly it is exposed to view as a model for any one who wishes to see, and seeing to settle himself there " (Rep. IX. 592). The ' real will ' is simply the 132 Political and Moral Essays ' rational will,' and the ' real State ' the ' rational State,' the ideal after which we ought continu- ally to strive, and which we shall never perfectly attain. Meanwhile it is our duty to submit to civil authority, imperfect and more or less irrational as such authority actually is on earth. To wait for the ' real ' or perfectly rational will, and deny obedience to any authority short of that, would be to live in chronic insurrection. The ' real will ' is to be promoted, the ' real State ' looked for as a kingdom to come : but the imperfect powers that be claim our present actual obedience. Thus far, — and practice hardly goes any farther, — I trust I am in agreement with Mr. Bosanquet, widely as our theories differ. § 76. Or will any one venture to affirm that he obeys himself, his real and better self, by obeying the behests of the State that he lives in, whatever they be ? Such a one will rank with those who are ready to raise up Leviathan, 1 to fall in with the worship of 1 Par at i sunt suscitare Leviathan (Job iii. 8, Vulgate). I do not wish to couple Mr. Bosanquet's name with Leviathan and Dea Roma. The State which he has in view I take to be an academic entity, consisting of the dominant thought of the age. which ought to control the doings of the age, and in the end commonly succeeds in controlling them. Am I wrong in my further conjecture of Mr. Bosanquefs position? — that he agrees with Auguste Comte in considering the dominant thought of each Origin and Extent of Civil Authority 133 Dea Roma, the apotheosis of emperors, the can- onisation of the Vicar of Bray, and the uncan- onising of all martyrs. A clear point of political wisdom it is, in view of the maintenance of the State, not to exaggerate civil authority. There is a nemesis of reaction against all over- strained and overvaunted power. As we love and cherish the State ; as we recognise it, with Aristotle, for the highest and best of all human institutions ; as we hold the disruption of the State, and the local wreck of any civil society, to be a calamity worse than famine and pestilence ; as we confess that the Church presupposes the State, 1 coexists with the State, and perishes locally wherever civil anarchy ensues, — we must, in the State's own interest, insist on the essential limitations of civil authority. The most obedient subjects are they who do not profess to be ready to obey successive age to be right for that age ; or, in terms of another philosophy, takes the educated public opinion of the day to re- present such expression as the universal consciousness so far has found for itself, though not all that it will find. I would add this remark in taking leave of the general will. The general will of an educated community is anctoritas, not potestas : it becomes potestas only as organised in definite constitutional forms. 1 A Christian cannot remain a savage. Witness the Jesuit Reductions in Paraguay, and the efforts of all missionaries to convert and civilise together. Only, I observe, neither civilisa- tion nor sanctity either involves of necessity the wearing of European clothes. 134 Political and Moral Essays the State in all things. A firm No carries a hearty Yes. As in extreme cases they will obey God rather than man (Acts iv. 19), so in all ordinary circumstances they will be subject for conscience 1 sake (Rom. xiii. 5). They bear much even of hard ruling, because they dis- cern, at the back of the State, a Power higher than any State. We must beware of weakening those delicate springs of religion and con- science upon which the State is borne. Polit- ical obligation is a moral obligation. Morality goes deeper than politics. And the moral law is something else than the registered determina- tion of king and people. § 77. Rights which the civil power cannot ignore or set aside beget a duty in that power to respect them, and every duty is a limitation. The civil power also has its rights. This leads to some consideration of the nature of ' a right.' First, then, a right is only possessed by one who has a rational will to hold it against trespassers. Inasmuch as they have no rational will, dumb animals have strictly no rights, nor does the law of any country recognise rights in them. The will of idiots and of infants is said to be ' radically ' rational, a sufficient basis for some possession of rights, not, however, such full pos- session as grown men of sane mind have. The adage, volenti nonfit injuria, might be expanded Origin and Extent of Civil Aictkority 135 into 71011 fit injuria nisi nolenti. Secondly, as rights are against other persons, that is, against other rational wills, it follows that a man's rights are dormant where he comes into contact with no other persons. No man has rights against himself: no man can do himself a wrongf, 1 or complain of injustice suffered at his own hand. The rights of Robinson Crusoe slept on his desert island till he found his man Friday. But, as I have argued already, by nature all men either are citizens or are in the way of becoming such: all men are naturally either actual or potential citizens. In the phraseology of the Schoolmen, if we consider a man's ter- minus a quo, he has the germ of civil life in him ; if w T e consider him arrived at his terminus ad quern, he lives a full and perfect citizen.' 2 The <£uViiAoAa/«ov ever to appreciate (Laws, IV. 704; VI. 778 D). 2 Plato, or the author of the First Alcibiades (134 B), explains Plato : " It is not walls, then, or ships of war, or arsenals, that cities need for their prosperity, nor population, nor size, without virtue." 146 Political and Moral Essays the outward act of the virtue, not for those inward dispositions which alone make the act truly virtuous. He apprizes virtues politically, not ethically. Ethics go beyond politics, and there is that in man which even goes beyond ethics. Still, Plato was right in maintaining that virtue, even on the mere political aspect, is nobler and of more consequence than dock- yards and tribute money. Alexander found tribute money enough and to spare in the coffers of Darius Nothus. § 82. The Greek mind was imbued with the maxim that it is the business of the State to make the citizens virtuous. Aristotle {Politics, III. 1280 b) assigns this as one distinctive feature of a State, 770X19, marking it off from a military confederacy, or cru/^a^ta, that the State enforces a standard of virtue : " the State, rightly so called, must make virtue its care." The maxim is misleading to us, because neither ' State ' nor ' virtue,' in our common speech, means exactly what 770X15 or apeTrj meant to the Greek. With us, Church and State, and again State and parish, and again State and public opinion, make three pairs of different things. They were all one at Sicyon and Megara, and even at Athens. These City States knew their citizens individually, and influenced them as Parliament never influences us. There is an Origin a?id Extent of Civil Authority 147 amusingly parochial air about Greek political proceedings. The restrictions on the size of Aristotle's model city {Politics, IV. 4) — it was to be evcruVo7rro9, like the old grey Oxford ; and its citizens not too numerous to stand within earshot of one herald, and him no Stentor, — are laughable and childish till we remember that this sovereign city was likewise the par- ish. 1 Then for the Greek conception of virtue, — apery], — it was originally a physical excel- lence, the quality of one who is 'a good man of his hands.' Of the two ideas, rectitude and 1 Local government, could they have entered into it. might have preserved to the Athenians their empire, as representative government might have prolonged republican institutions in Rome. The Romans early mastered the grand political art of respecting the municipal privileges and local institutions of the cities which they conquered and annexed. An Athenian in the days of Trajan would have told you that Athens was still free and autonomous : did not the Ecciesia still meet ? were there not archons and dicasts as in the days of Pericles ? Athens, however, was treated with greater consideration than other cities. The exchange of letters between Pliny and Trajan reveals a habit of centralisation and autocracy which grew with the principate. Still, the provincial cities appear to have been happy under it. They were not plundered, one great negative attribute of good government. They enjoyed the splendour and prosperity of which Rome was the centre and Roman rule the guarantee. We must remember that when the people (as distinguished from the politicians) are discontented, it is usually on social rather than on political grounds. An impoverished nation blames the govern- ment. We have not to sail far from English shores to see an example. Remedy their poverty, and you will remedy their dis- content. 148 Political and Moral Essays efficiency, the latter made up the greater part of what a Greek meant by ' virtue.' Thus there were intellectual ' virtues,' for instance, ' art.' The o-oifypuiv was virtuous, because he had himself in hand for all occasions of work : the cUdAacrTo? was vicious, because he was thoroughly unreliable and good for nothing. The maxim then really meant this, that it should be the care of the laws, and of the parish council, and of the beadles, and of public opin- ion as voiced by public speakers, and of minis- ters of the State religion, in the Greek city, to render the citizens the most efficient possible guardians of their city. So interpreted, the maxim will be accepted without discussion. 1 § 83. This interpretation throws light on Aristotle's saying {Politics, III. 1277), that in a citizen of the higher and ruling class the measure of virtue of the good man and of the 2;ood citizen is one and the same. Aristotle merely means that, to manage the affairs of 1 There is one virtue which no Greek government ever con- templated teaching its citizens either by word or example, the virtue of truthfulness. Plato's inculcation of official lying, as though untruthfulness could ever remain a government monopoly {Rep., 389 B, C; 459 C, D), — as though the proverb did not hold, A bove majori discit arare minor, — is one of the weak points of the Republic neglected in Aristotle's criticism. Truth- fulness, over and above observance of civil contracts and sworn evidence in court, is a good instance of a social virtue being matter of public opinion, not of civil authority. Origin and Extent of Civil Authority 149 State in a position of great trust, a man must be thoroughly competent and efficient in the affairs of private life : the measure of his public and private capacity must be alike full. The philosopher had doubtless in his mind the Greek proverb, " Office will prove a man." High office in the State calls for a display of courage, of perseverance, of forbearance, and of the virtues of the practical intellect. It is also desirable that the civil ruler should not be morally a bad man, cruel, rapacious, or licen- tious. Wickedness is the undoing of princes ? permeating through all their conduct, public as well as private, tainting their patriotism and marring their policy. Still, we must say, mere removal from the ranks of the wicked does not place a man on the high level of the per- fectly virtuous. Nor arc those virtues the most indispensable in the ruler which most perfect man as man. More important for political purposes is the ruler's being experienced and prudent, resourceful and unflinching, and even his being of robust bodily frame and capa- ble of protracted toil, than his personal piety and meekness, or his invariable sobriety and chastity. Cromwell was more fit to sit on a throne than Henry VI. There would have been no Wars of the Roses, had an Oliver Cromwell succeeded the victor of Agincourt. 150 Political and Moral Essays We want a statesman rather than a saint to govern us, a king in preference to a philosopher, though if kings could become philosophers without loss of kingcraft, and statesmen, re- maining statesmen, could be advanced to holi- ness, that combination, Plato said {Rep. V. 473 D), would be a radical cure for the miseries of earth, — rather much to expect. § 84. St. Thomas Aquinas (Stimma, 1 1 — 1 1. q. 161. art. 1, ad. 4), accounting for the omis- sion of humility from the list of Aristotelian virtues, writes : " The philosopher intended to treat of virtues according as they are referred to the end of civil life : . . . but humility, as it is a special virtue, particularly refers to the sub- jection of man to God." This may be ad- mitted. But it would not be true to say that Aristotle had no conception of virtues except " as they are referred to the end of civil life " ; in other words, that the only virtue which Aristotle cared to discuss was virtue in its social aspect, as it is the care of the politi- cian. There is a very clear distinction, both in Aristotle and Plato, between social and philo- sophic virtue. The distinction led to great results in the history of philosophy. Social virtue, ttoXltlkt) apeT-q, is motived by law and custom, by a sense of shame (cuSwg) and feel- ing of good fellowship (r/nA.ia). Philosophic Origin and Extent of Civil Authority 151 virtue is formed upon the internal standard of Xdyo? dpdos. I may refer to Aristotle, Nic. Eth. III. 1 1 16 0, 15 ff.; X. 1 1 77, 1 1 78; Plato, Phcsdo, 82 B; Rep. 619 C; TimcEiis, 90 C. I have said in effect several times already that philosophic virtue is not the direct aim or result of any exercise of civil authority. Motives and dispositions elude the magistrate. Philosophic speculation is none of his procur- ing, nor art, nor literature, 1 neither is inward rectitude of purpose. Even of exterior and overt acts the State can enforce but few, where there is question of domestic virtue and of private and personal virtue. He is far from being a good father, or a good husband, who obeys the bare letter of the most minutiose laws that can possibly be imposed to regulate his relations with his wife and children. He is not a temperate man, who eats and drinks and otherwise indulges himself as much as the policeman will allow. He is not a generous man, who pays rates and will not further sub- scribe. The virtue whereby man worships God, the virtue of religion, is above all things else a thing of the heart, where no compulsion can enter; and it blossoms forth into many outward acts of reverence and devotion, over 1 "We have no literature : it is the fault of the Minister of the Interior," wrote Napoleon from camp. 152 Political mid Moral Essays which the State functionary would make a foolish figure as master of ceremonies. Pub- lic opinion reaches farther than legislation and the executive power : but even public opinion does not penetrate far into the privacy of do- mestic life, where much virtue should dwell. I conclude that "society was never meant to be the principal means by which the perfection of the individual was secured, but only the con- dition without which that perfection would be impossible " (Woolsey, Political Science, I. 4). 1 § 85. Aristotle tells us {Politics, II. 1263 b) that a city must be made virtuous " by cus- toms and philosophy and laws." Laws, and in some sort customs, are functions of the State: but philosophy is a different power entirely. This is an admission on Aristotle's part of the insufficiency of the civil authority by itself for the task of making the citizens virtuous in the higher sense of the term. He never took philosophy for a function of the State. He would have resented, as an in- terference of the human with the divine, any attempt of the Ecclesia to regulate the dis- cussions at the Lyceum: 2 Formally, the phi- 1 Here I am in thorough accord with Mr. Newman, Politics of Aristotle, Introduction, Vol. I. pp. 77, 7S, ed. 1887. 2 He might have quoted from Plato (Rep. VI. 492 E) : " As the proverb says, let us leave the element of Divinity out of the reckoning." Origin and Extent of Civil Authority 15 j losophcr is distinct from the statesman ; and this formal distinction led, in Greek and Roman history, to an actual separation and opposition, and almost a quarrel. We can trace it all the way from Socrates to Plotinus. Socrates assured his judges that the restraining voice which he had heard from childhood had always kept him out of politics. 1 Plato took no part in Athe- nian politics, which he looked upon with disgust, vtto t€lx£ov a,7Tocrra<;, 2 and wrote of, almost in the language of Alcibiades at Sparta, as nepl ofjioko- yovjxiwqs avoia^ (Thucydides, VI. 89). Still, he held stoutly that the philosopher could save the State, if he were allowed (^era tqjv 1$l koi koivol crcoaet, Rep. VI. 497 A), and should be forward to do so {Rep. VII. 519 C, D, E; 1 Apol. 31 D sq., where he says: "Whoever really means to be a champion of righteousness, if he is to survive an hour, must live retired in private life and keep out of politics. 1 ' Bishop Magee of Peterborough some years ago startled people with the paradox that a State could not be conducted on Christian princi- ples for a week. It is well at least that some representatives of Christian principles should stand aloof from Montagues and Capulets. 2 From the celebrated passage, Rep. VI. 496 C, D, E : cf. the description of Athenian democracy. Rep. VI. 492 B, C: VIII. 557, 558, 563. Best of bad governments {Statesman, 303 A, B) is all the praise that Plato can find for the government of his native city. Neither Plato nor Xenophon seems ever to have forgiven Athens for the death of Socrates. Did either of them ever reflect how impossible the whole Socratic school would have been in the city of their predilection. Sparta? 154 Political and Moral Essays 520). Plato exerted himself for this purpose at Syracuse, and failed, unless we can suppose his example and precepts to have influenced Timoleon. To Aristotle, the question of the philosopher engaging in politics was purely speculative. Born at Stagira, he may have not enjoyed the citizenship of Athens, where he lived ; and besides, the sword of Philip and Alexander soon cut off all that was vital from the deliberations of the Athenian Ecclesia. In his Politics, IV. 1324 a, Aristotle definitely asks whether the life of the statesman or that of the philosopher is preferable. 1 He answers that the active life is decidedly preferable, but adds that the philosopher is as active as the statesman, indeed that his is the better activity of the two. The philosopher, to Aristotle, was the flower of the State. The State was the plant, born to produce the philosopher and to maintain him. 2 The flower cannot cut 1 TTOTtpOV 6 TToXlTLKOS KCU 7r/3O.KTlK0S /SlOS atpETOS, 7} /XaAAoV 6 ■n-dvTwv twv e/cros d7roAeAv/Ae'vos, olov Oewp-qriKos tis, 6v [xovov tivcs (pamv aval (fsiXoaocjyov . The question is neatly stated by Plato, Gorgias, 500 C, and became a commonplace in the rhetorical schools, whether the philosopher should engage in politics, rroTtpov ttoXltzvtcov tw (fa\o(row. 2 In true Aristotelian spirit Professor Stewart writes {Notes on Nicomachean Ethics, Vol. I. p. 19) : "The final cause of civilisation, as developed through the stages of olkUl and kw/xtj, is the produc- tion of the small band of thinkers, who, when the stage of the 7t6A.is has been reached, illuminate each generation." Cf. St. Origin and Extent of Civil Authority 155 itself off from the stem. And Aristotle would have his philosopher no recluse. He would not have him cut off from social and political life, — or in our days from details of local govern- ment, 'parks and gas.' But he counted him happiest in his quiet moments of contempla- tion. 1 Under the rule of the generals who succeeded Alexander, and again under Roman rule, militarism quite excluded philosophy from the conduct of the State. A Marcus Aurelius was the rare exception. The philosophers dwelt in a commonwealth of thought apart. Sometimes they found a patron in a Ptol- emy Philadelphus, and the other Ptolemies, founders and supporters of the Museum at Paul, 2 Tim. ii. 10, iravra 8lol tovs e/iAocroc/>ia frequently stands for Christian life and practice, e.g. in St. John Chrysostom, Homily 4, ad Philipp. — "the great and philosophic soul, . . . such was the soul of Paul : it had occupied an eminence higher than any other, the high ground of spiritual philosophy, the true philosophy " ; and Homily 6, in 1 T/iess., " nothing will be diffi- cult to us, if we will play the philosopher." Had not Plato said: " Greater good than philosophy never hath come, nor ever shall come, God-given, to mortal race"? (Tzmceus, 47 A, B). 158 Political and Moral Essays (Z)e corona, n. 259), ecfrvyov kolkov, rjvpov dfxeivov. Baptism was to them the entrance into the higher life, called newness of life (Rom. vi. 4). This life was to continue beyond the grave : indeed, its fruit and best enjoyment were there. In the Panegyric of Isocrates we read the praise of the Eleusinian Mysteries, how they opened to men a nobler life here and good hope for hereafter. The initiated in those mysteries looked forward beyond death to life everlasting in the company of the gods (Plato, Phcedo, 81 A). To these vague longings of Hellenism, Christianity imparted defmiteness and assurance, pointing for the argument of the higher life to the Incarnation, and for the argument of the life enduring beyond the grave to the Resurrec- tion of the Saviour. To put in one word this ' higher life ' of Christianity, I should say that Christianity inspired ' holiness,' as something over and above 'goodness.' Civil authority is exerted on behalf of political goodness, or (in Aristotelian phrase) 'general justice.' No one has ever dreamt of saying that the formal ob- ject of the exercise of civil authority is to make men holy. 1 § 87. Not content with setting up a high ideal of life and encouraging aspirations after immor- 1 See the section, "Of the Scope and Aim of Civil Govern- ment, 1 ' in my Ethics and Natural Law, pp. 354-357. nn. 1, 2, 3. Origin and Extent of Civil Authority 159 tality, Christianity undertook a task which no school of philosophy had undertaken, except in some small measure the Pythagorean Brother- hood. It developed a government analogous to that of the Roman Empire, making of bishops its spiritual proconsuls, and fixing in Rome it- self the centre of a world-wide spiritual author- ity. It declared itself a spiritual kingdom, a polity of positive divine institution in the super- natural order. 1 It clothed its ordinances in the forms of Roman law, till there came to be recognised, and indeed are to this day recog- nised, two great branches of law, the civil and the canon law. Christianity always repu- diated any intention of subverting the State, or of swallowing up the civil power in the spiritual. Crude/is Herodes, Deum Regem venire quid times ? Non eripit mortalia, Qui regno, dat coelestia. So it sang in the vesper hymn of the Epiphany, still retained in the Roman Breviary. And its founder had said Ccesaris Ccesari? Christian- 1 It may help to clearness if I say that ' the supernatural ' is whatever of itself tends to bring man to the vision of God face to face in heaven, called 'the beatific vision, 1 a consummation not due to human nature as such, but opened to man by the grace of his Redeemer. -Jus a ut an diviiunn, quod est ex gratia, non tollit jus hit ma- 160 Political and Moral Essays ity argued itself compatible with civil govern- ment, as operating in a different sphere and contemplating a different end. Canon law was directed to the sanctiflcation and eternal salvation of men's souls : whereas the State, as such, and the civil law of the State, was a natural institution, in view of public tranquil- lity, social security and justice, and the protec- tion and co-ordination of temporal rights. Thus the Church had no concern with commercial tariffs, with the sewage question, or vaccination. But it stood ready to denounce commercial num, qtwd est ex naturali ratione (St. Thomas, II— II. q. 10, art 10) . But what shall I say of these words, written at Little more in 1845 by a future Cardinal? "There is a religious communion claiming a divine commission. ... It is a natural enemy to governments external to itself; it is intolerant and engrossing, and tends to a new modelling of society ; it breaks laws, it divides families. . . . Apologies, however eloquent or true, availed no» thing with the Roman magistrate against the sure instinct which taught him to dread Christianity. It was a dangerous enemy to any power not built upon itself; he felt it, and the event justified his apprehension" (Newman, Essay on Development, ch. vi.). There is a weight of history in these words, but they are not, I think, inconsistent with the statement in the text. It is not ne- cessary to be an invader to provoke resentment. It is sufficient to mass a large force on the frontier of a suspicious and un- friendly power. As I have shown, you cannot draw a hard and fast line of limitation to civil authority. On some such principle as that which I have called l voluntary public control, 1 the civil power may wish to pour itself out on to certain march lands, and find the ground preoccupied by the Church. A non-Christian power will not brook this check. Cf. § 45. Origin and Extent of Civil Authority 161 frauds as a sin, an obstacle to salvation, and to punish the dishonest Christian trader, — the usurer, for instance, — by withdrawal of spirit- ual privileges. Beyond this, the Church came to claim, and the Christian State to allow, the right of visiting offences against religion, and scandalous immoralities, particularly of ' crim- inous clerks,' with temporal penalties. Further- more the Church laid it down that, while the civil and ecclesiastical polities existed in differ- ent orders and for different puiposes, and were so far forth independent of one another as their orders and purposes were different, yet the spiritual order was superior to the temporal, salvation of more consequence than political well-being. In practice, the priority in dignity of the spiritual order was balanced by the fact that the armed force was in the hands of the State ; money was more abundant in lay coffers, especially after the rise of commerce, forbidden by canon law to ecclesiastics ; and though the preponderance of intellect and education rested at first with the clergy, yet that inequality came in time to be redressed, or even reversed. The difficulty was, that both powers dealt with the same subjects, with the same living Christian men, women, and children, with their persons and with their wordly interests, 1 although not 1 E.g. in marriage questions. M 1 62 Political and Moral Essays from the same point of view. Human nature would have needed to be far more perfect than as history has known it, had conflicts of Church and State never arisen. But so there are con- flicts of man and wife. § 88. I have laid down the relations of Church and State briefly, according to the ex- position of Bellarmine and Suarez, who assign to the Church only an indirect, or incidental, power in temporal matters. This doctrine is detailed with admirable clearness in Cardinal Manning's The Vatican Decrees in their Bear- ing on Civil Allegiance (London, 1875), and in Cardinal Hergenrother's "Essay XIII., The Power of the Church in Matters Temporal " (in The Catholic Church and the Christian State, Vol. II. pp. 204-232, Eng. transl.). But in Dr. Gierke's Political Theories of the Middle Age, translated by Professor Maitland (pp. 12-14, 105-120), I find, directed against Hergenrother, a great array of quotations purporting to show that " it is a mistake to represent the great Popes as proclaiming, and the common opinion of the later Middle Age as accepting, only that sort of ' indirect power in temporalities ' (in Bellar- mine's sense of these terms) which was claimed for the Apostolic See by later theorists " (p. 108). The theory which Hergenrother brands as an extravagance, — that theory which is the oppo- Origin and Extent of Chit Authority 163 site pole to Erastianism, and delivers over the civil power, hand and foot, to the ecclesiastical, — Dr. Gierke will have to be the accredited the- ory of the Middle Age. But he admits that it was not the sole theory then in vogue, and that there coexisted with it another theory, which is substantially the same as Bellarmine's (pp. 16-19, with notes 38, 49, 50, jj*i, pp. 118, 124, 125). He quotes Petrus Paludanus (De causa immediata eccl. pot. a. 4) : Papa est superior in spiritualities, et per consequents in temporalibus, quatenus necesse est pro bono spirituaii: not observing how this sentence makes entirely for Bellarmine. He relies on Augustinus Trium- phus and Alvarius Pelagius, two authors already noted by Hergenrother as extravagant. The extravagant view certainly was held : the ques- tion is, was it the dominant view ? x Of two conflicting theories, both in the field six centu- ries ago, to say which predominated requires not only erudition and vast reading, but also a nice discernment of language, and, if the theo- ries are theological, a considerable acquaint- ance with mediaeval theology. Thus, to a theologian, the declaration in the Unam Sauc- ta?n of Boniface VIII., that every human crea- ture is subject to the Roman Pontiff, means that the Church is of right coexistent with the 1 It is censured by Dante, Pi(?-gatorio, c. xvi. 164 Political and Moral Essays human race, and that the Pope is supreme in the Church for the purpose for which the Church exists, that is, for the salvation of souls : no more than that is defined, and, therefore, no more than that can be argued from the Bull as the belief of the Universal Church. 1 Nor can things said of the Impera- tor Romanorum semper Augustus be applied without discretion to any and every temporal prince : the Emperor, as none knows better than Dr. Gierke (cf. his n. 35, p. 118) was in a quasi-ecclesiastical position. 2 There are buc- 1 The reasons alleged in a papal bull definitive of doctrine are no part of the definition. What Boniface says of the " two souls" (by accommodation of the text, Luke xxii. 38), and of the temporal sword being drawn ''at the beck" {ad nutiiui) of the spiritual power, will not appear such a monstrous pretension, if we consider the Papacy as : — a. Watching over the defence of Christendom and civilisation against Islam : (3. A court of arbitration to forestall war. We have had our battles with dervishes : we are groaning under the burden of a costly war, and of armaments said to be on a ' peace footing.' 1 War, like the poor, may be destined to be always with us : but the attempts of the mediaeval Papacy to regu- late war may claim to rank with the efforts of modern philanthropy to alleviate poverty. ' 2 The first thing to do in order to any understanding of the mediaeval relation of Pope and Emperor is to cast out all modern notions which attach to the latter term. Such a book as Mr. Bryce's Holy Roman E7npire serves this purpose well. To me- diaeval eyes there could be but one Emperor in Christendom, one Emperor and one Pope. The Emperor was advocatus Ecclesiae, the champion of Christendom against her temporal enemies, the Origin and Extent of Civil Authority 165 cinatores in every camp : even good men wax hot and say strong things, which are not accord- ins to knowledge. A theological doctrine is first held vaguely, is then drawn into discus- sion, is exaggerated, is contradicted, and only after much tossing to and fro does it assume a definite scientific form : so Newman explained the development of doctrine. The definite, scien- tific, developed doctrine of the Catholic Church on the (ideal) relations of Church and State is not that which Dr. Gierke has gathered from sundry mediaeval enthusiasts : it is the doctrine of the three Roman Cardinals, Bellarmine, Her- genrother, and Manning, and finally of Pope Leo XIII. 1 born leader of Crusades; and to this intent, in St. IgnatiuVs words (Exercit. Spir. de regno Christi), he was "a king, to whom all princes and all Christian men pay reverence and obedience." To this intent he was crowned by the Pope. Till his coronation the Church spoke of him as 'emperor elect,' a title beyond which the Emperors after Charles V. never cared to proceed, till the very name of Holy Roman Empire perished in 1806. This is he for whom a collect, Pro Imperatore, is still printed in the Roman missal, and for whom several lines of prayer, now passed over in silence, may be read at the end of the Exultet, which is sung on Holy Saturday. The Emperor was also a temporal prince, usu- ally King of Germany. Who made the Emperor? is a question foreign to the scope of this dissertation. But it is a different question from that other, Who made the King of Germany or the King of England? 1 Itaque Dens human i generis procurationem inter dicas po- testates partitus est, scilicet ecclesiasticam et civilem, alteram quidem divinis, alteram humauis rebus prapositam. Utraquc t 66 Political and Moral Essays § 89. The bonds of Church and State have been loosened in our time. So far as we can peer into proximate futurity, the Church seems likely in point of fact to remain ranked among those numerous voluntary associations that have their rights safeguarded by the State in the or- dinary administration of criminal law and main- tenance of contract, — associations that the State est in suo genere maxima : Ziabet utraqzie certos qiiibus contineatur terminos, eosque sua cujusque natura causaque proxima definitos ; nude aliquis velut orbis circumscribitur, in quo sua cujusque actio jure proprio versetur. Sed quia utriusque imperium est in eosdem, cum usuvenire possit ut res una atque eadem, quamquam aliter atque aliter, sed tamen eadem res ad utriusque jus judi- ciumque pertiueat, debet prorndentissimus Deus, a quo sunt anibae constitute, utriusque itinera rede atque ordine composuisse. . . . Quidquid igitur est in rebus humanis quoquo inodo sacrum, quid- quid ad sa/utem animarum cultu/uve Dei pertinet, sive tale Mud sit natura sua, sh>e rursus tale intelligatur propter causam ad quam refertur, id est omne in potestate arbitrioque Ecclesia? : cetera vero, qua civile et politician genus complectitur, rectum est civili auctoritati esse subjecta (Encyclical, Immortale Dei, November 1, 1885). His Holiness goes on to speak of concor- dats as compromises favourable to the civil power. The distinc- tion of that power from the ecclesiastical is clearly recognised. As a witness from the Middle Age, I quote St. Thomas Aqui- nas (Sunima, 2 a -2 ac , q. 60, art. 6, ad. 3), Non est usurpatum judicium si spiritual is prcelatus se intromittat de temporalibus, quantum ad ea in quibus subditur ei s&cularis potestas, vel qua> ei a sa-culari potestate reliuquuutur. The two relative clauses are evidence that no unqualified subjection was expected of the secular power. I may remark of concordats that they stand to the essential relations of Church and State something as civil law stands to natural law, determining the indeterminate. Origin and Extent of Civ it Authority 167 would act unwisely in endeavouring to suppress or absorb. Should Christianity ever recover such a hold on the human heart as that nations shall wish to pay deference to the Church, and recognise it as endowed with rights and privi- leges above those of a mercantile company, not on that account must the precedents of the Middle Ages all recur. We copy the mediae- val architecture, adapting it to our own senti- ment and practice. We no longer build two churches under one roof, an open nave for the people, a screened-off choir for the clergy. The following are some of the differences that may mark any future resuscitation of mediaeval Christianity. They are all differences for the better. (1) The clergy will never again constitute the multitude of ' clerks,' or educated persons, distinguished from the ' lewd,' or illiterate ' layfolk.' There will be no need for a man to take Orders simply because he wants to study. (2) We are likely to have seen the last of epis- copal lord chancellors, and of Cardinal min- isters of State in secular governments, — of Wolseys, Beatons, Richelieus, and Alberonis. The barbarism of lay nobles, fit for nothing but hunting and war, will no longer afford an excuse for prelates living away from their 1 68 Political and Moral Essays dioceses in civil positions, ' to keep out worse men.' 1 (3) Works of education and charity, though proper to the clergy, are not their exclusive appanage. The intelligent layman will often make a better charity commissioner or a better educator for purposes of this life. (4) And generally, the spheres of civil and ecclesiastical authority will intersect less, to the saving of interference and conflict. 2 § 90. Had there never been any appropria- tion of Church property by the State, the Church by this time would have been rich beyond the bounds of calculation. That fact does not justify the spoliation ; but it points to a need that would probably have arisen of some concordat between the ecclesiastical and the civil authority, whereby the expenses which now fall upon imperial and local taxation, and upon the munificence of private generosity, for educational purposes and the relief of distress, 1 to vtto TrovrjpoTepov ap^arOni iav fJLT) avrbi iOeXrj ap\€tv (Plato, Rep. 347 C). 2 This speculation proceeds on the principle of the division of labour and the necessity of specialisation, things operative now as they were not operative under the Plantagenet and Tudor kings. The ways of life have been trodden into distinctness. Is it, fur- ther, too much to hope that history may not have been written in vain, and that experience on both sides may tend to render strife less probable? ora^ci 8' iv vttvio irpo KapSias p.vr\rnT?r)p.iav 7rdvos, . . . Sai/wwv Si ttov x^P's (.-E.schylus, Again., 179-182). Origin and Extent of Civil Authority 169 — to say nothing of new churches and foreign missions, — might have been largely met out of existing Church revenues. Wolsey's endow- ment of his ' Cardinal College ' with the prop- erty of several decadent religious houses, suppressed by papal brief for that purpose, gives an inkling of more that might have been done but for Henry VIII. and his rapacity. § 91. However future history shall take its way, there remains the theoretical truth, that the highest perfection of which mankind is susceptible is not the official aim of the State, and cannot be directly reached by any action of the civil authority. The civil authority is removens prohibens (§ 78). The perfection and happiness of man is an individual work, which, under God, each man must accomplish in his own soul. 1 It is also a social work, but the society charged with achieving it is not the State. § 92. You cannot prove Christianity a priori (§ 43). You cannot get Christianity, as you get civil authority, out of human nature and 1 "And thus, as the whole city grows and is well established, we must leave room for the operation of nature allotting to the several classes of citizens their due participation in happiness " (Plato, Rep. IV. 421 C). Every robust, clean-cut individual character is the type of a distinct class, — as divines say every angel makes a species by himself. Where State development stops short, individual development goes on. 170 Political a,7id Moral Essays natural exigency. Christianity is not a neces- sity of man, as man, though it is a necessity of the present historical order of Provi- dence. Had no Christianity been given to us, religious societies of some sort would have had to be founded. They might have coincided with the several States, so that the State should have been a civil commonwealth under one formality, a religious commonwealth under another, — to borrow a comparison from Aris- totle {Politics, III. 1276 6), as the same choris- ters may be formed now into a chorus for comedy, now for tragedy, — or as in the days of the prince-bishops the Ecclesia Dunolmensis and the Comitatus Dunolmensis were two as- pects of the same quasiStaXe, where prince and bishop, being one and the same person, used to indite letters to each other. 1 Or otherwise, the boundaries of religious societies might have outgrown the boundaries of States, or they might have been less, many religious bodies in one State. That is speculation of what might 1 See the Register of Bishop Kellawe, a.d. 1311-1316, in the Rolls Series. The mediaeval conception of the Ecclesia Roman a and the Imperium Romanmn was similar, one body with two formalities, intended to gather into itself the entire world. Simi- lar, yet not altogether alike : for, according to the distinction of formalities, there was to be a distinction of heads, the Pope and the Emperor. This bears out what I have written of the distinc- tion of the temporal from the spiritual power. Origin and Extent of Civ it Authority 171 have been, nay, of what in the present condi- tion of Christendom actually is. Still, by posi- tive divine institution, the one Church of Christ holds the field. To her it is given to supple- ment the State, and to operate beyond the farthest reach of civil authority, — rinding man a citizen of earth, to exalt his conversation and citizenship to heaven : r^koiv yap to iroXiTevfxa lv ovpavols vTrdp-^ei (Phil. iii. 20). & APPENDIX To the Catholic theologian, preoccupied with his own science, and indeed to any mind that has concerned itself with the Bible rather than with anthropology and geology, the term ' primitive man ' does not mean the man whose bones and stone implements are turned up in quaternary deposits, — the man whose social condition is estimated by observation of the social condition of savages, — but it means Adam and his children strictly so called, that is, the sons and daughters born to him of his wife Eve. A lorious creature as he came from the hands of his Creator, Adam must have still retained after his fall much of that knowledge of God and of the moral law wherewith his Maker had endowed him. Thus he knew the unlawfulness of divorce and of polygamy (Matt. xix. 5), and taught the same, as we may suppose, to his children ; although of polygamy we have an early record in Gen. iv. 19. No Christian anthropologist would call Adam a savage ; or deny that Adam and Eve and their immediate offspring constituted a perfect family, antecedent to the formation of any State. What the anthropologist will not allow is that we have any Biblical evidence, or any evidence whatever, of the perfect family existing as an institution over any wide area of the earth in the 930 years of Adam's life, or generally in the earliest age of humanity ; and by ' human- ity ' I mean here a multitude of ' much people ' and a race of mankind. Apparently, man is by origin a tropical animal. He still delights, when the climate will allow him, to live out of doors, to eat and drink al fresco, and part with much of his other- 173 1 74 Political and Moral Essays wise enforced burden of clothing. But these favourable condi- tions of human life seldom obtain and rarely endure. In most times and places man is engaged, as was foretold (Gen. iii. 17-19), in a struggle in which nature has him by the throat. The labours of generations are requisite to over- come nature, to endow some portion of the community with leisure, to set art and literature and philosophy on their way, — in a word, to establish civilisation and the State. ' Primitive man ' to the anthropologist means man at the commencement of this struggle. How far and by what steps of degradation this ' primitive man ' is separated from the ' primitive man ' of theology, the anthropologist does not know, no one knows. It is as though some very slow train, anything but a Scotch express, were traced from Edinburgh to the Border, and finally reappeared in sorry plight at Grantham, no one being able to tell the story of its intermediate passage. The remote date now assigned to early Assyrian and Egyptian civilisation makes one wonder whether some strand of culture and art has not run through all human history from the very first. If that hypothesis were tenable, it would follow that at no epoch were all the men on earth together in a state of savagery. However, it is generally argued that they were ; and that we have passed through horde and totem group, and matriarchal and patriarchal households, to the tribe, and by the tribe to the developed family and State. No one supposes that this progress is made out with accuracy and certainty for every step. The study of it involves many plausible provisional hypotheses, hypotheses, however, which the student of political philosophy in these days cannot afford to shut his eyes to. ESSAY II SAVAGES The scientific study of savages is dignified with the name of Anthropology. It is a new science. The savage used to be matter of curiosity and amusement to his civilised elder brother. Now that brother sees in him, in the Maori and the Algonquin and the Bushman, the pattern of his own early ancestors. This view has been greatly furthered by the accept- ance of the Darwinian theory. But anthro- pology is a science by itself apart from biology. It takes man when and wherever it finds him as a man, and is not concerned to know how man came to be. Apart from Darwin, apart from all derivation of the human species from lower forms, we may believe, if we will, that when there first came to be upon the earth, not this individual man, or that particular family, but a race of men and a multitude, the race was in the state and condition of savages ; and that from these savage ancestors the most civilised races on earth have been evolved through ages of gradual progress. 175 176 Political and Moral Essays This belief is everywhere dominant : you can- not open a book of modern science or philoso- phy in which it is not presupposed. Leaving biology out of the question, the anthropological and antiquarian argument on which the belief is founded comes to this. Practices, institu- tions, modes of thought, common to savages and to the remote ancestors of civilised people, and still traceable underneath the civilisation of the said people, are evidence that those ancestors were in the same stage of evolution in which these savages now are. But there are innumerable such practices, institutions, and modes of thought, common features of existing savages and our ancestors, and dis- cernible even in ourselves: this is proved by many careful observations of antiquarians and travellers. The conclusion follows. The argu- ment looks stronger when the record of those observations is read than when put in this abstract syllogistic form. To do it justice, some such books should be read as Keane's Ethnology and Primitive Man (Pitt Press), and the Anthropology of Dr. Tylor, of the Univer- sity Museum, Oxford. When I say that books of modern science and philosophy all presuppose this conclusion, I reserve Catholic books. I cannot say how far the conclusion is accepted in the Catholic Savages 177 schools. My impression is that it is not defi- nitely discussed there. Catholic teachers are taken up with urging the necessity of a Cre- ator against extreme forms of Darwinism. Their debate is biological, not anthropolog- ical. Anthropology does not receive due at- tention in Catholic philosophy. I mean that, leaving the origin of man alone, and confin- ing ourselves to undoubted facts of human history, we do not sufficiently concern our- selves about the moral and social condition of primitive mankind. So far as I know, there is no pronouncement of the Church on the matter. All that the Church asserts is the unity of the human race, all descended from one ancestor, all born in original sin through the transgression of that ancestor, and all in need of the redemption of our common Saviour. Of course, the Church also asserts whatever is meant and asserted by the narrative of Gen- esis. But the Church has afforded us no au- thoritative interpretation of that most obscure narrative. No theologian will undertake to say who were the inhabitants of the city that Cain built. 1 Like all early historians, the writer of Genesis is mainly concerned with genealogy, with the descent of that particular family which produced Abraham and the Jew- 1 Gen. iv. 17. N 178 Political and Moral Essays ish people. He throws no light on the social condition of earliest mankind at large, be- yond informing us that they were very wicked. Whatever knowledge Adam had in Paradise, we are nowhere told that he was able to per- petuate that knowledge in his children over any wide region of the globe. Abel had flocks of sheep, and Cain was a husbandman : but we do not read that the domestication of animals was generally practised from the first, or that, wherever man went, he mapped the earth out into agricultural districts. A few may have known what the many were ignorant of, as to this day the ways of Pall Mall are not the ways of the valley of the Zambesi. Fallen into sin, struggling with a nature both within and without no longer subject to him, roaming in search of a livelihood over an earth under a curse, man would have degenerated rapidly, and soon fallen very low. The Church, I say, is silent on the subject ; and from my own private searching of the Scriptures, I do not gather anything to settle the question whether the primitive races of mankind, as races, were savages or not. Thus we are referred back from the Bible record to anthropology. 1 1 The Bible was not written for a manual of anthropology, nor of any other ology, not even of theology, of which last it affords the materials, but is not a scientific treatise. But though Savages i 79 To the anthropologist, 'savage' is no term of moral censure. It does not mean 'bloodthirsty and ferocious.' As a matter of fact, the lowest savages are quite harmless and peaceable in their everyday life, hospitable, and even kind to strangers. A man may be a very good man after the fashion of his time, and yet be a sav- age. Above the 'savage,' in the scale of civili- sation, ranks the ' barbarian.' That again is not a term of reproach. The contemporaries of the patriarchs were 'barbarians': a 'barbaric' civili- sation means, in fact, a patriarchal condition of society. Lastly, as regards the word 'civilised.' All men are more or less civilised, for 'civilised' means simply 'humanised.' When we speak of 'civilised' times as supervening upon savage and barbaric times, we mean times of higher civili- sation, — the times of Tr€iraihevfx4voL (educated and humanised mankind) as compared with TTaL&evojxevoi (mankind under education). No modern population is yet through its whole extent ' civilised ' : nay, how many or how few individuals are there perfectly 7re7ra.1Setyi.eV01 ? Savages to the anthropologist are more inter- esting than the most highly educated persons, at least when he gets not too much of their company. To his regret savages are disappear- it does not settle things for him, the Bible yields the anthropolo- gist most valuable and authentic side-lights. i8o Political and Moral Essays ing, some dying out, others aping European dress and manners, and relinquishing their own deft handicrafts to make gaudy third-rate articles in the London or Manchester style. Travellers in the seventies of the bygone century saw what is not to be seen now. Hence old books of travels and collections made years ago teach things that would not be learnt by observation of savage life as it actually goes on at this hour. If any one would read through the twenty-six volumes of the Lettres Edifiantes, and, being a person capable for that purpose, would note down and publish all that bears on the man- ners and conditions of savages, he might render a service to science. 1 Man is measured by his tools. The evidence of geology goes to show that primitive man had no tools but wood, presumably, which has perished long ago, and stone tools, not ground at first (though they were ground later), but sharpened by chipping off pieces, and held in the hand without a handle. Better stone im- plements, and then copper, and then iron in- struments, came later. It is commonly argued from geology that in the days of primitive man all mankind were savages, closely resembling the savages that are now, or have existed till 1 The Lettres Edifiantes are letters of French missionaries in the eighteenth century. Savages 1 8 1