Page:Encyclopædia Britannica, Ninth Edition, v. 11.djvu/25

Rh to the student of society, anything but a universal fact. From his point of view the cause of a particular law is not one but many, and of the many the deliberate will of a legislator may not be one. Sir Henry Maine has illustrated this point by the case of the great tax-gathering empires of the East, in which the absolute master of millions of men never dreams of making anything in the nature of a law at all. This view is no doubt as strange to the English statesman as to the English jurist. The most conspicuous work of government in his view is that of parliamentary legislation. For a large portion of the year the attention of the whole people is bent on the operations of a body of men who are constantly engaged in making new laws. It is natural for us, therefore, to think of law as a factitious thing, made and unmade by the people who happen for the time being to constitute parliament. We forget how small a proportion the laws actually devised by parliament are of the law actually prevailing in the land. No European country has undergone so many changes in the form of government as France. Eepublic, constitutional monarchy, and empire have there succeeded each other again and again in the course of a century. It is surprising how little effect these political revolutions have had on the body of French law. The change from empire to republic is not marked by greater legislative effects than the change from a Conservative to a Liberal ministry in England would be. These reflexions should make us cautious in accepting any general proposition about forms of government and the spirit of their laws. We must remember, also, that the classifica tion of governments according to the numerical proportion between governors and governed supplies but a small basis for generalization. What parallel can be drawn between a small town, in which half the population are slaves, and every freeman has a direct voice in the government, and a great modern state, in which there is not a single slave, while freemen exercise their sovereign powers at long intervals, and through the action of delegates and representatives 1 Propositions as vague as those of Montesquieu may indeed be asserted with more or less plausibility. But to take any leading head of positive law, and to say that monarchies treat it in one way, aristocracies and democracies in another, is a different matter. Laws affecting trade might be ex pected to depend on the more or less popular character of the government. Yet would it be safe to say that monarchy discourages, that democracy encourages, free trade? France under the empire was more free-trading than France under the republic. If there is any difference at all between Great Britain and her colonies it is that the latter are generally supposed to be more democratic than the mother country. Yet protection rules the young democracies, while free trade reigns at home. The principle has indeed been broadly laid down that oligarchical governments interfere more actively and.more extensively in the affairs of their subjects than popular governments. We shall have occasion to show directly that the popularization of government in England has up to this time been attended by a striking increase in the sphere of state action.

 

We may now ask, What is the appropriate sphere of government ? What kind of business does it undertake, and what kind of business ought it to undertake 1 ? By what limits is its action to be restricted? Here too the field is occupied by disputed theories and diversified practice. And the sphere assigned to state action in different ages and countries varies as widely as the form of government. The action of the state, or sovereign power, or govern ment in a civilized community shapes itself into the three fold functions of legislation, judicature, and administration. The two first are perfectly well defined, and the last includes all the kinds of state action not included in the other two. It is with reference to legislation and administration that the line of permissible state-action requires to be drawn. There is no doubt about the province of the judicature, and that function of government may therefore be dismissed with a very few observations. The complete separation of the three functions marks a high point of social organization. In simple societies the same officers discharge all the duties which we divide between the legislator, the administrator, and the judge. The acts themselves are not consciously recognized as being of dif ferent kinds. The evolution of all the parts of a highly complex government from one original is illustrated in a striking way by the history of English institutions. All the conspicuous parts of the modern government, however little they may resemble each other now, can be followed back without a break to their common origin. Parliament, the cabinet, the privy council, the courts of law, all carry us back to the same nidus in the council of the feudal king.

Judicature.&mdash;The business of judicature, requiring as it does the possession of a high degree of technical skill and knowledge, is generally entrusted by the sovereign body or people to a separate and independent class of functionaries. In England, the appellate jurisdiction of the House of Lords still maintains in theory the connexion between the supreme legislative and the supreme judicial functions. It is only recently that the important subject of divorce passed from the legislative chambers to the courts of law. In some of the States of the American Union the judicial functions of the upper house are still maintained after the example of the English constitution as it existed when these States were founded. In England there is also still a consider able ainount of judicial work in which the people takes its share. The inferior magistracies, except in populous places, are in the hands of private persons. And by the jury system the ascertainment of fact has been committed in very large measure to persons selected indiscriminately from the mass of the people, subject to a small property quali fication. But the higher functions of the judicature are exercised by persons whom the law has jealously fenced off from external interference and control. The independence of the bench distinguishes the English system from every other. It was established in principle as a barrier against monarchical power, and hence has become one of the tra ditional ensigns of popular government. In many of the American States, the spirit of democracy has demanded the subjection of the judiciary to popular control. The judges are elected directly by the people, and hold office for a short term, instead of being appointed, as in England, by the responsible executive, and removable only by a vote of the two Houses. There is not the smallest sign that de mocratic opinion in England is tending in this direction. 1 At the same time the constitution of the United States has assigned to the supreme court of the Union a perfectly unique position, standing in singular contrast to the de praved condition of many of the State judicatories. The supreme court is the guardian of the constitution. It has to judge whether a measure passed by the legislative powers is not void by reason of being unconstitutional, and it may therefore have to veto the deliberate resolutions of both Houses of Congress and the president. It is admitted that this singular experiment in government has been completely justified by its success.

1 It is worth noting that direct election to offices supposed to be characteristic of the democratic spirit has no place in English political ideas. The few instances in which it occurs are regarded with indifference. The election of the coroner by the freeholders is universally condemned. In the few parishes where the clergyman may be appointed by the parishioners, the right is often left to be exercised by the bishop. 