Page:Popular Science Monthly Volume 25.djvu/11

 shown that in mediæval Europe the right of private war among members of the military order was brought to an end, not because the head ruler thought it his duty to arbitrate, but because private wars interfered with the efficiency of his army in public wars—having shown that the administration of justice long continued to display in large measure its primitive nature in trial by battle, carried on before the king or his deputy as umpire, and which among ourselves continued nominally to be an alternative form of trial down to 1819, it might then be pointed out that even now there survives trial by battle under another form: counsel being the champions and purses the weapons. In civil cases the ruling agency cares scarcely more than of old about rectifying the wrongs of the injured; but, practically, its deputy does little more than to enforce the rules of the fight: the result being less a question of equity than a question of pecuniary ability and forensic skill. Nay, so little concern for the administration of justice is shown by the ruling agency, that when, by legal conflict carried on in presence of its deputy, the combatants have been pecuniarily bled even to the extent of producing prostration, and when, an appeal being made by one of them, the decision is reversed, the beaten combatant is made to pay for the blunders of the deputy or a preceding deputy; and not unfrequently the wronged man, who sought protection or restitution, is taken out of court pecuniarily dead.

Adequately done, such a portrayal of governmental misdeeds of commission and omission, proving that the partially surviving code of ethics arising in and proper to a state of war still vitiates governmental action, might greatly moderate the hopes of those who are anxious to extend governmental control.

But leaving out the greater part of the large topic comprehended under the title of this article, I propose here to deal only with a comparatively small remaining part—those sins of legislators which are not generated by personal ambitions or class interests, but result from a lack of the study by which legislators are morally bound to prepare themselves.

A druggist's assistant who, after listening to the description of pains which he mistakes for those of colic, but which are really caused by inflammation of the cæcum, prescribes a sharp purgative and kills the patient, is found guilty of manslaughter. He is not allowed to excuse himself on the ground that he did not intend harm, but hoped for good. The plea that he simply made a mistake in his diagnosis is not entertained. He is told that he had no right to risk disastrous consequences by meddling in a matter concerning which his knowledge was so inadequate. The fact that he was ignorant how great was his ignorance is not accepted in bar of judgment. It is tacitly assumed that the experience common to all should have taught him that even