of rules which make up the law of England—the rules of practice
in the courts, the local customs of a county or a manor, the
principles formulated by the sagacity of generations of judges,
equally with the statutes for the year, are conceived of by the
school of Austin as created by the will of the sovereign and the
two Houses of Parliament, or so much of them as would now
satisfy the definition of sovereignty. It would be out of place
to examine here the difficulties which embarrass this definition,
but the statement we have made carries on its face a demonstration
of its own falsity in fact. There is probably no government
in the world of which it could be said that it might change at
will the substantive laws of the country and still remain a
government. However well it may suit the purposes of analytical
jurisprudence to define a law as a command set by sovereign to
subject, we must not forget that this is only a definition, and that
the assumption it rests upon is, 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, therefore, to think
of law as a factitious thing, made and unmade by the people
who happen for the time being to constitute parliament. It is
forgotten 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. 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 reflections 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 classification 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? 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.
II. Sphere of Government
The action of the state, or sovereign power, or government in a civilized community shapes itself into the threefold 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 different 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.—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. In some states of the American Union certain judicial functions of the upper house were for a time maintained after the example of the English constitution as it existed when the states were founded. In England there is also still a considerable amount 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 qualification. 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 traditional 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. At the same time the constitution of the United States has assigned to the supreme court of the Union a perfectly unique position. The supreme court is the guardian of the constitution (as are the state courts of the constitution of the states; see United States). 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.
Limits of State Interference in Legislation and Administration.—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 may 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 outcome 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 can be and ought to be limited belongs to the times of “government by discussion,” to use Bagehot’s expression,—to the 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 making 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. The state is conceived as acting like
