The Sphere and Duties of Government/Chapter 14
ON THE SOLICITUDE OF THE STATE FOR THE WELFARE OF MINORS, LUNATICS, AND IDIOTS.
All the principles I have hitherto endeavoured to establish in this essay, presuppose men to be in the full exercise of their ripened powers of understanding. For they are all grounded on the conviction, that the man who thinks and acts for himself should never be robbed of the power of voluntarily deciding on all that concerns himself, according to the results of his deliberations. Hence, then, they cannot be applied to persons such as lunatics and idiots, who are almost wholly deprived of reason, or to those in whom it has not reached that maturity which depends on the very growth and maturity of the body. For, however indefinite and, strictly speaking, incorrect, the latter standard may be, still there can be no other valid test to enable us to judge in general of others. Now, all these persons require, in the strictest sense, a positive solicitude for their physical and moral well-being, and the mere negative regard for their security is not enough to meet the wants of their peculiar position. But, to begin with children, who constitute the largest and most important class of such persons, it is evident that the care for their welfare, in virtue of the principles of right, peculiarly belongs to certain persons, that is, their parents. It is their duty to train up their offspring to perfect maturity; and from this duty, and as the necessary conditions of its exercise, flow all their rights with regard to them. The children, therefore, retain all their original rights as regards their life, their health, their fortune (if they already possess any), and should not be limited even in their freedom, except in so far as the parents may think necessary, partly for their own development, and partly to preserve the newly-arisen domestic relations, while such limitations should not extend beyond the time required for their training. Children must never be compelled to actions which extend in their immediate consequences beyond this period of development, or even over the whole life. Hence, for example, they cannot be bound in the matter of marriage, or be obliged to follow any particular career. With the age of maturity the power of the parents must necessarily cease altogether. The duty of the parents, then, may be thus generally defined,—to put their children in a condition (partly by personal care for their physical and moral well-being, and partly by providing them with the necessary means) to choose a plan of life for themselves, while they are only restricted in that choice by the circumstances of their individual position; the duty of the children, on the other hand, consists in doing all that is necessary for the sufficient performance of that duty on the part of the parents. I shall not pause here to enumerate and examine in detail all that these respective duties comprehend. Such an examination belongs rather to a theory of legislation, and even in such could hardly be fully presented, seeing that it depends in great measure on the special circumstances of individual positions.
Now, it clearly belongs to the State to provide for the security of the rights of children against parental encroachment; and hence to determine, first, a legal age of maturity. Now, this must naturally differ, not only according to the difference of the climate and the epoch in which they live, but also according to individual circumstances, and the greater or less degree of intellectual maturity required in them. In addition to this, it must see that the parental power does not exceed its just limits, and must always regard its exercise with a watchful eye. Still this supervision must never seek to prescribe any positive rules for the definite training and instruction of the children by their parents, but must confine itself to the negative precautions necessary for preserving in both, the due observance of those mutual limits and relations assigned them by the law. It would, therefore, appear to be neither just nor advisable to require parents to be continually rendering account of their conduct towards their children; they must be trusted not to neglect the discharge of a duty which lies so near to their hearts; and only in cases where actual neglect of this responsibility has occurred, or where it may be immediately apprehended, has the State any right to intermeddle with these domestic relations.
To whose care the superintendence of the children's training must fall, after the death of the parents, is not so clearly determined by the principles of natural right. Hence, it becomes the duty of the State to decide distinctly on which of the kinsmen the guardianship is to devolve; or, if none of these should be in a condition to undertake the discharge of this duty, to declare how one of the other citizens may be chosen for the trust. It must likewise determine what are the necessary qualifications for guardianship. Since the guardians appointed undertake all the duties which belonged to the parents, they also enter on all their accompanying rights; but as, in any case, they do not stand in so close a relationship to their wards, they cannot lay claim to an equal degree of confidence, and the State must therefore double its vigilance with regard to the performance of their duties. With guardians, therefore, it might be necessary to require that a regular account should be given of the way in which they discharge the important trust reposed in them. According to our former principles, it is well that the State should exercise as little positive influence as possible, even through indirect means. Hence, then, as far as agrees with its care for the security of the children, it must facilitate the choice of a guardian by the dying parents themselves, or by the surviving relatives, or by the municipality to which the children belong. And it should be observed further, that it is well to transfer the supervision of all special precautions to be taken in such cases to the respective municipalities; their measures will not only be always more exactly accommodated to the individual circumstances of the wards, but will be more various and less uniform in their character; and so long as the chief superintendence remains in the hands of the State itself, the security of the wards is sufficiently provided for.
In addition to these arrangements in the case of minors, the State should not rest satisfied with protecting them, like other citizens, from outward encroachment, but must advance a step further in this respect. It has been before laid down, that every man may dispose of his fortune or determine on his actions, according as the case may be, of his own free-will. Such freedom might be dangerous, in more respects than one, to persons whose judgment was not fully matured. It is, indeed, the duty of the parents, or of the guardians, to whom the superintendence of the minor's actions is confided, to ward off such risks. But the State must come in to aid them in this respect, and also consult the interests of the minors themselves, by declaring such of their actions void as are likely to be prejudicial to them in their consequences. It must thereby baffle the interested designs of others to deceive them and surprise them into false decisions. Where such designs have succeeded, the State must not only enforce the reparation of the loss, but must also punish the parties to the deception; and thus actions may become punishable which would otherwise be beyond the reach of legal control. I may here mention illicit sexual intercourse as an example; in which, according to these principles, the State must punish in the person of the perpetrator, when the offence has been committed with a minor. But as human actions require infinitely different degrees of judgment, and the latter only reaches its maturity by successive stages, it is well to fix on different times and degrees of minority by which the validity of different actions may be determined.
What we have here observed respecting minors, applies also to the provisions to be made in the case of idiots and madmen. The difference chiefly consists in this, that these do not require education and training (unless we apply this name to the efforts made to restore them to the use of their reason), but only care and supervision; that in their case, moreover, it is principally the injury they might do to others which is to be prevented, and that they are generally in a condition which forbids the enjoyment either of their personal powers or fortunes. It is only necessary to observe, with regard to these, that as the return to reason is yet possible, the temporary exercise of their rights is all that should be taken from them, and not those rights themselves. As my present design does not permit me to enter more fully into the case of such persons, I shall conclude the subject with the statement of the following general principles:—
1. Those persons who are deprived of their proper powers of understanding, or have not yet reached the age necessary for the possession of them, require the exercise of a special solicitude towards them, as regards their physical, intellectual, and moral welfare. Persons of this kind are minors and those deprived of reason. First, of the former class; and, secondly, of the latter.
2. In the case of minors, the State must determine the duration of their minority. It must provide in this that the period be neither too long nor too short to be essentially hurtful—deciding according to the individual circumstances of the condition of the nation, and guided by considerations of the period required for the full development of the body, as an approximative characteristic. It is advisable that certain times should be appointed for the expiration of minority as regards the validity of different actions, and that the freedom of the minors be gradually enlarged while the supervision of their affairs is proportionately diminished.
3. The State must see that the parents strictly fulfil their duty towards their children, that is, to befit them, as far as their situation allows, to choose a plan of life of their own; and that the children, on their part, discharge the duty they owe to their parents, that is, to do all to enable the latter to fulfil their duty with regard to them; while neither parents nor children be allowed to overstep the rights which the discharge of their mutual duty puts into their hands. To secure this object alone must be the State's endeavour; and every attempt to bring out positive ends through the pretence of this solicitude,—as, for example, to encourage a particular development of the children's powers,—must be regarded as foreign to its appropriate sphere.
4. In the event of the death of the parents, guardians are necessary to be appointed. The State, therefore, should determine the w ay in which they are to be chosen, and the qualifications requisite in them for the proper performance of their trust. But it will do well to provide that they be appointed by the parents before their death, or by the surviving relatives, or by the municipality to which the minors belong. The conduct of the guardian in the discharge of his duty requires especial supervision on the part of the State.
5. In order to provide for the security of minors, and that their inexperience and rashness be not employed by others to prejudice their interests, the State must declare all such actions void as have been ventured on by themselves, and are likely to be hurtful to them in their consequences, and must punish those who ha^e availed themselves of the inexperience of the minors in this way.
. All that is here said of minors applies likewise to those who are deprived of reason, with the difference only which is suggested by the nature of the thing itself. No one more- over should be regarded in such a condition until he has been formally declared to be so, after an inquiry into the circumstances by medical men, and under the supervision of the magistrate; and the evil itself must always be considered as temporary, and the return of reason possible.
I have now considered all the objects to which State agency should be directed, and have endeavoured to lay down the ultimate principle by which it should be guided in each. Should this essay appear imperfect, and should I seem to have omitted much that is important in legislation, it must not be forgotten that it was not my intention to con- struct a theory of legislation (a task above my knowledge and abilities), but only to make it clearly evident how far legislation in its different branches might extend or restrict the limits of State agency. For, as legislation may be divided according to its objects, it can also be arranged according to its sources; and perhaps the latter system of division, particularly as regards the legislator himself, is especially interesting and rich in results. There seem to me to be only three such sources, or, to speak more correctly, three grand points of view from which the necessity of laws appears. The general object of legislation is to determine all that concerns the actions of the citizen and their necessary consequences. The first point of view, therefore, arises from the nature of those actions themselves, and of such of their consequences as flow solely from the principles of right. The second point of view is the special end of the State, the limits to which it designs to restrict, or the circuit to which it would extend, its agency. Lastly, the third point of view is suggested by the means which the State requires in order to preserve the political organism itself, and to render the attainment of its ends at all possible. Every conceivable law must properly originate in one of these three points of view; but none should be made and enacted without regard to all the three, and the one-sided view in which they have originated is an essential defect in too many laws. Now from this threefold aspect we have three preliminary essentials for every system of legislation. 1. A complete general theory of right. 2. A perfect exposition of the end which the State should propose itself, or what is, in fact, the same thing, an accurate definition of the limits within which it is to restrict its activity, or a representation of the especial ends which are actually pursued by this or that State union. 3. A theory of the means necessary for the existence of a State; and as these means are necessary partly for the sake of preserving internal cohesion, and partly in order to assure the possibility of action, a theory of political and of financial science, or, again, a representation of actual systems of politics and financial economy. In this general classification, which admits of various subdivisions, I would only observe that the first-mentioned alone is eternal and immutable as human nature itself, while the others allow of divers modifications. If, however, these modifications do not proceed from perfectly general considerations, derived from all these different aspects of legislation, but from accidental circumstances; if, for example, there exists in some State a fixed political system, and financial arrangements which are unchangeable, then the second division we have mentioned is very difficult to preserve entire, and often through this the first and most essential suffers. The reasons for very many political imperfections might certainly be traced to these and similar collisions.
Thus I hope to have sufficiently indicated what I proposed in this attempted exposition of the principles of legislation. But, even with these limitations, I am very far from flattering myself with any great success in my design. The correctness of the principles laid down may not admit of question, but there is doubtless much incompleteness in the attempt to support and accurately define them. Even to establish the most fundamental principle, and especially as regards such an end, it is necessary to enter into the most minute details. But it was not accordant with my plan to enter into these; and while I strove my best to body it forth in my own mind as the model for the little I wrote down, I could not but be conscious of a greater want of success in the representation. I must, therefore, rest satisfied with having pointed out rather what remains to be done, than sufficiently developed the whole subject in all its parts. Still I trust I have said enough to render the whole design of this essay clearer, or to show that the grand point to be kept in view by the State is the development of the powers of all its single citizens in their perfect individuality; that it must, therefore, pursue no other object than that which they cannot procure of themselves, viz. security; and that this is the only true and infallible means to connect, by a strong and enduring bond, things which at first sight appear to be contradictory—the aim of the State as a whole, and the collective aims of all its individual citizens.