Page:Encyclopædia Britannica, Ninth Edition, v. 11.djvu/26

Rh  Limits of State Interference in Legislation and Administration.&mdash;The question of the limits of state action does not arise with reference to the judiciary. The enforcement of the laws is a duty which the sovereign power must of absolute necessity take upon itself. But to what conduct of the citizens the laws shall extend is the most perplexing of all political questions. The correlative question with regard to the executive would be what works of public convenience should the state undertake through its own servants. The whole question of the sphere of government miy be stated in these two questions : What should the state do for its citizens] and How far should the state interfere with the action of its citizens? These questions are the direct out- cone of modern popular government; they are equally unknown to the small democracies of ancient times and to despotic governments at all times. Accordingly ancient political philosophy, rich as it is in all kinds of suggestions, has very little to say that has any bearing on the sphere of government. The conception that the power of the state cxn be and ought to be limited belongs to the times of &quot; government by discussion,&quot; to use Mr Bagehot s expres sion, to ths time when the sovereign number is divided by class interests, and when the action of the majority has to be carried out in the face of strong minorities, capable of miking themselves heard. Aristotle does indeed dwell on one aspect of the question. He would limit the action of the government in the sense of leaving as little as possible to the personal will of the governors, whether one or many. His maxim is that the law should reign. But that the sphere of law itself should be restricted, otherwise than by general principles of morality, is a consideration wholly foreign to ancient philosophy. Ths state is conceived as acting like a just man, and justice in the state is the same thing as justice in the individual. The Greek institutions which the philosophers are unanimous in commending are precisely those which themost state-ridlen nations of modern times would agree in repudiating.

Importance of this Question in English Politics.&mdash;Limitation, then, being a principle known only to free governments, we naturally look to English political history for its elucidation ; and the speculative and practical treat ment of this question is perhaps the most valuable contri bution made by England to political science. From the time of the Involution, the principle that there is a limit to the permissible action of government has been tacitly admitted. The theories which restricted the powers of the constitutional king by founding them on popular consent tended also to the restriction of the sphere of government in general. The connexion between the two may be seen very clearly in Locke. Government was created by the voluntary union of men in political society, and the object for which they agreed to unite was the preservation of their property. The scope of government is therefore limited by this its original object. &quot; Though men, when they enter into society, give up the liberty, equality, and executive power they had in the state of nature into the hands of society, to be so far disposed of by the legislature as the good of society shall require, yet, it being only with an intention in every one the better to preserve himself, his liberty, and property, ... the power of the society or legis lature constituted by them can never be supposed to extend further than the common good.&quot; The practical application of these principles is to be found in his essay on Toleration. The business of the state being the protection of body and goods, it has no right to interfere with the religious worship or opinions of its citizens. The existence of religious dis sent on a large scale kept up the practical importance of this theory. Even in the extreme absolutism of the parti sans of monarchy, the curious doctrine of passive obedience recognizes the same principle. Although the will of the sovereign ought never to be resisted, there is a line of action beyond which he ought never to pass. Another historical fact of some importance is the long- continued alienation of the aristocratic classes from the reigning family during the post-Revolution period. In the 18th century the natural champions of monarchical power were in opposition. Their vast local influence, which might otherwise have gone to aggrandize the influence of the crown, was really employed to thwart it. There thus sprang up in the most conservative classes of society a strong feeling of jealousy for local independence, and a standing dislike of Government interference. Squire Western, in Tom Jones, may be taken as the type of the country party of the period. His idea of intellectual conversation is abusing the Govern ment over a bottle. Nothing in the new-fangled notions of his sister disgusts him more than her affected sympathy with the politicians then in power. The sullen disaffection of the most powerful section of society was a most effectual bulwark against any extension of the central power. It has been remarked by an acute observer 1 that the weakness of government in the 18th century suffered even public insti tutions to assert their local independence. Corporations of every kind enjoyed the most complete liberty of action, and, freed from state control, became the private patrimony of their members. The same sort of resistance to state action has been repeated in the 10th century. The natural adherents of the crown, and the leaders of provincial society, the aristocracy, the county gentry, and the clergy, have g3nerally been in opposition to ministers. It is a fact not without significance that the first constitutional question of this reign was raised by Sir Robert Peel, the leader of the Conservative party. Again, the exhaustive discussion of all political measures, which for two centuries has been a fixed habit of English public life, has of itself established the principle that there are assignable limits to the action of the state. Not that the limits ever have been assigned in terms, but popular sentiment has more or less vaguely fenced off departments of conduct as sacred from the interference of the law. Phrases like &quot;the liberty of the subject,&quot; the &quot;sanctity of private property,&quot; &quot;an Englishman s house is his castle,&quot; &quot; the rights of conscience,&quot; are the commonplaces of political discussion, and tell the state, &quot;Thus far shalt thou go and no further.&quot;

State and Church.&mdash;The side on which the legitimate province of government has been most debated is that on which it comes in contact with religion. High eccle siastical theories draw the lines of restriction as clearly as voluntaryism, but what they exclude is state control and not state support. The Roman Catholics, the High Church party in England, and the Free Church in Scot land, all unite in protesting against the intrusion of the secular government into spiritual affairs. This assertion of a spiritual domain lying beyond the sphere of govern ment, and sacred from its interference, unfortunately implies that there is another authority from which, on religious matters, the Government ought to take its instructions. The duty of a national recognition of religion implying com pulsion of the most personal character is strongly asserted by the very persons who denounce state control as illegiti mate and tyrannical. The exclusion of the state from the spiritual domain is, in fact, not founded on any reasoned theory of the functions of government at all, but on the belief in a divinely appointed order for spiritual things, which it is the duty of the state to enforce. An attempt to base this position on general principles has, indeed, been made by Mr Gladstone in his work on Church and State. Holding that the state is a moral person, he argues that its

1 Mr Mark Pattison in Essays and Reviews. 