The citizen and his duties

Front matter

SOCIAL PROBLEMS SERIES

BY

W. F. TROTTER, M.A., LL.M.

Contents

CHAP. PAGE

I. THE SCOPE AND METHOD OP INQUIRY . . . . 1

II. THE CITIZEN AND THE STATE . . . . .7

Chapter I The Scope And Method Op Inquiry

There are many rules of conduct which are binding on men simply as rational and social beings, whether they are, or are not, members of a State. Such are the common and fundamental rules of morality. It is part of my duty towards my neighbour, “ To hurt nobody by word nor deed : to be true and just in all my dealing ” ; ^ and it does not matter that my neighbours are Frenchmen. This counsel of perfection must of course be modified in its application, according to circumstances. “ Ideal conduct is not possible for the ideal man in the midst of men otherwise constituted. . . . Among people who are treacherous and utterly without scruple, entire truthfulness and openness must bring ruin, ... a mode of action entirely alien to the prevailing modes of action cannot be successfully persisted in — must eventuate in death of self, or posterity, or both.”^ But although morality must to some extent be relative to man and the circumstances in which he is placed, we conceive its commands to be in general binding on men as men,

1 English Church Catechism.

2 Spencer’s Princijgles of Ethics^ part i., chap, xv., p. 106.

without regard to any positive institutions. Most civilised men are, however, members of some State or other, and no society can exist without rules of social order. The State is a particular kind of society. It is a 'political society — an association for living together in definite ways for a political end. Hence there must be rules of conduct binding its members, not merely as rational and social beings, but as members of that State. To a large extent these will include the ordinary moral duties. But something more is necessary, and the additional rules of conduct prescribed by different States to their members as such may vary. Until 1870 an Englishman remained an Englishman wherever he went and whatever his intention to change his nationality. He could not rid himself of the duty of allegiance. Early in last century Englishmen who had become subjects of the United States were impressed from on board American vessels to serve in the British navy. The Naturalisation Act of 1870, however, enables a British subject to become a subject of a foreign State and thereby to cease to be a British subject. But the maxim Nemo potest exuere patriam ^ has not been wholly abandoned by European nations. A Eussian is not released from his allegiance by the fact that he has become a foreign subject ; ^ nor is an Italian under the same circumstances freed from the obligation of military service, or from liability to punishment for taking up arms against his country. As a citizen is under a moral obligation to obey the law of his State, even when he thinks it bad — provided that it does not command him to do what he regards as wrong — it follows that his moral duties will to some extent differ in different States. But difference in laws is not the only source of difference in duties. The peculiar circumstances of a State, including its constitution, its internal social condition, and external relations, give rise to special demands on a citizen’s activity. New conditions create

^ No one can divest himself of his allegiance.

2 Naturalisation Commission Report^ Appendix.

SCOPE AND METHOD OF INQUIRY 3 new duties. An investigation, of the duties of a citizen as such, regarded apart from his relations to any particular State, is therefore a more general inquiry than one respecting the particular duties of a citizen of a particular State. How far the former inquiry is either possible or useful may well be a matter of doubt. It is sufficient to say here that it is liable to degenerate into trite observations of no practical value.

The aim of this book is to discuss the duties of a British citizen, not those of a citizen in general. But an important question arises as to the method by which we are to ascertain these duties. With regard to one class of duties the answer is not far to seek. The law prescribes certain duties to a citizen ; while others are left to the individual’s conscience and public spirit. Hence a citizen’s duties fall into two classes, according as they are, or are not, laid down and enforced by law. The obligations imposed by the positive law of a country on its members must be determined in the ordinary legal manner. One has to rely partly on Acts of Parliament, partly on judicial decisions, sometimes on authoritative dicta, and in many cases on mere inferences drawn from judicial doctrines. The result is not always certainty. But positive law, looked at as an intelligible system, has one advantage over moral doctrine : since doubts as to what is law may be authoritatively decided by judges.^

The case is different when we pass to consider those duties of a citizen which are not defined by law nor enforced by the State. “ In the case of moral rules there is no judicial process by which doubts as to what the accepted rule is on any question can be authoritatively settled.” ^ If this be true of positive morality, or the rules of conduct to which the members of a particular country are actually expected, by the feelings and opinions prevailing at the time in that country, to conform, it is even truer of ideal morality, or the rules

^ H. Sidgwick’s Elements of Politics, chap, xiii of duty which are universally accepted, or in our opinion ought to be so. Moral views have varied in many places and times, and do so even now ; and the opinions of ethical writers have shown an even greater divergence. When, in addition to this uncertainty about the principles by which human action ought to be regulated, we remember that these principles have to be applied in practice to the complex facts of social life, before we can determine what in particular our duties are, we would appear to have entered a sphere of pure surmise and opinion. But the case is not so desperate as it would at first blush seem to be. Fortunately for mankind, deliberation is not an end in itself. We think to live, and the practical necessities of life evolve rules almost of themselves. The divergence in the philosophical explanations of morality given by different thinkers is parallelled by a striking convergence in the practical rules of conduct which they accept. The vagueness, uncertainty, and variation in the moral code accepted in western civilised States have their limits. They arise partly from the absence of clear ideas and correct reasoning, partly from the fact that “ Man is neither angel nor brute,” ^ but simply man. We have, on the whole, a fairly definite system of moral doctrine which most thoughtful men accept. It constitutes a body of axiomata media, or maxims intervening between any ultimate principle of morality and the more particular rules for the guidance of human action. It is these axiomata media which we apply in judging particularcases — not the ultimate standard. Philosophy cannot give us practical guidance. It is even questionable whether it can give us hope. No profound ethical theory will enable me to decide whether I should give my vote, say, to-morrow for the Liberal or the Conservative candidate, or, despising both, for the representative of the Independent Labour Party. Doubtless it may have a psychological influence. If I am a German, belonging

1 Pascal’s Pens^es.

SCOPE AND METHOD OF INQUIRY 5 to the right wing of the Hegelian school of thought, and under the conviction that “ the kingdom of heaven ” is realised in the modern German State, I shall probably vote for the powers that be. But it is only a probability, and we find Hegelian philosophers on opposite sides in politics. A philosophical radical like John Stuart Mill may revile the common people “ in language as strong and bitter as we might look for in an old high Tory,” ^ or in Carlyle.

But, after all, practical questions must be decided by practical men in a practical manner ; and the most effectual guarantee against error is to make the assumptions on which we reason not only clear and consistent, but as approximate as possible to actual facts. To take an illustration. “ I may conclude, from the point of view of abstract theory, that by taking twelve plain men and shutting them up in a room till they are unanimous, I am likely to get but a blunt and clumsy instrument for the administration of criminal justice ; but this defect may be more than compensated by the peculiar confidence placed in this instrument by a people whom the unbroken tradition of centuries has taught to regard trial by juries as the ‘ palladium of its liberties.’ ” ^ It is considerations like these that lessen the second difficulty pointed out above, namely, the difficulty in applying general rules, once they are obtained, to the complex organisation of the modern State. This difficulty is great. But part of it arises from the fact that we do not take into account the general characteristics of social man ; in short, we do not observe that, in order to apply rules practically, we have to make other assumptions than those rules themselves. It is only through lack of this practical perspective that anyone can hold, for example, Mr. Spencer’s view that sanitation should not be undertaken by municipal bodies, but left to the ordinary action of individual demand and supply. Such a bizarre theory

^ MacCimn’s Ethics of Citizenship, p. 94.

overlooks the actual facts of human nature. If sanitation vmre not undertaken by municipal bodies, there would not be much of it. Ignorance and indolence are still prevalent ; and history records the evils, in the shape of disease, which follow insanitation. Men have frequently to be coerced not only for the benefit of the community, but for their own benefit, into doing acts which they might not otherwise do. We cannot safely allow anyone to live in a house unfit for human habitation. There is therefore much force in the late Lord Salisbury’s remark ; “We no more ask what is the derivation or philosophical extraction of a proposal before we adopt it than a wise man would ask the character of a footman’s grandfather before engaging the footman. . . . We ought first to discuss every subject on its own merits.” ^

On the whole, we cannot hope to attain, in a discussion of the moral duties of a British citizen here and now, anything like the certainty by which we arrive at a knowledge of his legal obligations. All that can profitably be attempted is to make clear the chief considerations which should guide him in deciding what in particular he ought to do. These considerations must be based partly on the validity of the moral rules of conduct which thoughtful and earnest men would accept, partly on certain assumptions as to the nature of men, which are not universally true, but are approximately true of civilised men. Then we have to apply these principles to the actual facts of State life in order to ascertain how best a citizen can promote the welfare of his country. What in particular the latter assumptions are will be brought out in the course of the discussion. But certain leading ideas must be explained at the outset. After that we shall pass to consider, firstly, the legal obligations incumbent upon a British citizen ; and secondly, those duties which are left undefined by law.

1 In a discussion on socialistic legislation in the House of Lords on May 19, 1890.

Chapter II The Citizen And The State

The term “ citizen ” is here used in its widest sense as meaning a member or subject of a State. But writers frequently restrict it to electors, i.e., those who have the right to vote in parliamentary elections. This latter meaning would in many cases exclude the larger part of a community, and is not adopted in this book. A citizen, then, means a member of a State. But what is a State ? A State must be distinguished from a Nation or a People, although the term “Nation” is often used as equivalent to State. By a Nation the Romans meant a People, that is, a large number of human beings united by community of language, customs, opinions, and religion, such as is usually produced by a common descent and common historical experience. Thus the French Canadians form a People. But a State is more or less an artificial unit. It is a political society, i.e., a body of human beings united together in such a manner that they acknowledge permanent obedience to the same government, which represents the society in its corporate relations with other States. A State is independent when it does not render habitual obedience to any foreign government. The institution of government is the fundamental characteristic of the State. There must be some person or body of persons whose commands are habitually obeyed by the majority of citizens, and who is strong enough to enforce such commands by punishment. Three other attributes are generally considered necessary for a State. ( 1 ) Its members must not be too few in number. According to Bentbam, tbe number must be so high as to ensure duration. Aristotle, on the other hand, placed a limit on the maximum number, and thought that the members of a State should not be more than 100,000. But the modern view is different, and does not disregard the possibility of a world- wide empire. “ From the earliest dawn of history in Europe down to the present day the tendency to form continually larger political societies — apart from the effects of mere conquest — seems to accompany the growth of civilisation.”^ (2) The State must have a definite territory ; for without a fixed abode no State can attain a high degree of civilisation. (3) The

members of a State should not be united merely by the fact of obedience to the same government. A State

should be a Nation. There must be an organic connection amongst its members. “A State has a “continuous life, within which its individual members arise and perish, a life which has to be cared for over and above the sum of individuals at any given time existing.” ^

Its citizens must be conscious of the fact that they

are “members one of another.” There must exist an esprit de corps among them — a feeling of patriotism and nationality.

The necessity of government to ward off external attack, and to maintain internal peace and order, would seem sufficiently apparent. Yet there have been, and still are, thinkers of the opinion that this institution will either eventually disappear or ought to cease. This is what is known as Anarchy. Such wild vagaries hardly call for serious consideration. Government is essential to an orderly society. If every man were a law unto himself, the civilisation of Western Europe and America would quickly disappear. No society has become highly civilised without possessing an organised government. Indeed, the present tendency is not to diminish, but to

2 D. G. Eitcbie’s Natural Rights, p. 98.

THE CITIZEN AND THE STATE increase, the functions of government. The happiness of the citizens is the end of government, and people are beginning to see that such an end cannot be attained if the government merely confines itself to preventing mutual interference among its subjects, and to defending them from foreign invasion. The social misery and dissatisfaction arising from the unequal distribution of wealth ought somehow to be alleviated in a civilised State. Paternal government of some kind is necessary. The only practical difference of opinion begins on the question as to how far it is advisable to proceed in this direction. Experience alone can determine what matters can be conveniently dealt with by any State, or by this or that particular State. We must not assume a 'priori, after the method of Mr. Herbert Spencer, that the functions of government are limited to certain matters. This is sheer dogmatism, and Mr. Spencer’s constant appeal to the customs of savages and barbarian tribes in support of his contention is not convincing. What is inexpedient in one state of society is not necessarily inexpedient in another and different state. In practical politics a philosopher is not an ideal guide.

One of the assumptions required in the discussion of a citizen’s duties is, then, the necessity of an organised government. But what form should such government take ? Here another assumption must be made, namely, that the democratic form of government is the best. Government should be hy the people, for the people, and with the people. Government should rest on the active consent of the people governed. It does not fall within the scope of this essay to discuss the reasons for making this assumption. But even though we may all agree in thinking democratic government is best, differences of opinion may still arise with regard to the particular form which a democratic government should take. Should there be an hereditary monarch or not ? Should there be a second chamber, and if so, how should it be constituted ? Should the share of the people at large in governing be confined merely to the election of legislators, or is their direct intervention desirable in some cases ? These and other questions will naturally be decided somewhat differently in different States at different stages of civilisation.

Looked at from the point of view of political theory, the English Constitution is democratic. Political sovereignty resides in the electors. But both in theory and in fact the British democracy is a “Limited Democracy.” The larger part of the community have no share at all even in the election of parliamentary representatives. The elector “ votes merely that a certain government be returned to power, and at the end of a term of years, during which he has no authority over them at all, he can either replace them or turn them out.” ^ But this is not all. Parliament itself is an oligarchy. Despite the number of the Independent Labour Party, the House of Commons can hardly be said to be democratic in composition.^ The majority of its members are landowners, rich merchants, brewers, bankers, successful lawyers, and the like. “ A poor man may get into the House of Commons, with his expenses paid for him by a political or industrial organisation. . . . But a political aspirant in England should be in easy circumstances, and if he is very rich his upward progress will be smoother and more rapid. . . . Englishmen esteem success, particularly if it is of the solid, material kind ; and wealth means success, in a world where everybody would be rich if he could. . . . The poor man, with no capital but his brains and a possibly precarious profession, is always looked upon as very much of an adventurer in England till he has arrived. The constituencies so far have not shewn themselves specially anxious to facilitate his arrival by the political

^ L. T. HobhoHse, Democracy and Reaction^ p. 181.

2 The present House of Commons is of a more popular composition than any of its predecessors.

THE CITIZEN AND THE STATE road.” ^ Even if there were a true democratic element in the Commons, there would still be the House of Lords to reckon with. Eecent events have shewn an increased activity on the part of the Lords. A Bill passed by a large majority of the Commons on a question definitely put forward as an issue at a general election is no longer certain to pass through the House of Lords. Although it is true that some of the members of that House have had long experience of public service, and that a few are learned, the House of Lords is an aristocratic body, representative of wealth and birth. The same aristocratic predominance appears in the persons by whom the government of the country is actually carried on. The Cabinet, even under a Liberal regime, is largely composed of peers, members of old county families, successful men of business, and distinguished lawyers. This characteristic is, of course, more marked in a Conservative Cabinet than in a Liberal one. But it is strong in both. Good birth, wealth, and social influence are almost essential qualifications for a Cabinet Minister. The present Cabinet at its formation forms an illustration.

Sir H. Campbell-Bannerman .

Lord Loreburn Earl of Crewe Marquis of Kipon .

Sir E. Grey ....

Mr. H. Gladstone .

Earl of Elgin .

Mr. E. B. Haldane .

Mr. J. Morley Lord Tweedmouth .

Mr. D. Lloyd- George Mr. J. Burns .

Earl of Carrington .

Landowner and son of a wealthy manufacturer.

Successful lawyer.

Eich peer and landowner.

Ditto.

Distinguished lawyer, and married into a wealthy family.

Baronet and landowner.

Of a wealthy mercantile family, and son of the Eight. Hon. W. E. Gladstone.

Peer and rich landowner.

Successful lawyer.

Distinguished man of letters.

Peer and rich landowner.

Successful solicitor.

The first working man to attain Cabinet rank.

Peer and rich landowner.

1 Sidney Low, The Governance of England^ pp. 178-9, 182.

Mr. A. Birrell Sir H. Fowler .

Mr. J. Bryce .

Mr. J. Sinclair

Mr. S. Buxton

Successful lawyer and man of letters. Successful solicitor.

Eminent professor and jurist.

Son of a baronet, and son-in-law of a peer.

Son of an M.P., and wealthy.

Eecent changes in the Cabinet have only emphasised its aristocratic nature. Thus Mr. L. Harcourt has entered it. He is the son of the late Sir William Harcourt, and is of an old aristocratic family. Yet this Cabinet is more popular in composition than any before it. If we pass to the permanent civil service, which does the real work of government, the case is little better. It is true that entry into most of it is by open competitive examination. But appointments in it are not for the poor man who cannot afford an education at public schools and the great universities. The permanent civil service is still, as regards its higher grades, the close preserve of the aristocracy and plutocracy. Nothing need be said of appointments which are in the patronage of the government. These are only given to persons “ in the swim.” The government is a good friend to well-connected young men seeking for something to do.

Much has been urged in favour of such a state of things.’- But it does not present itself as perfect, and what a British citizen ought to aim at is the realisation of a true and real democracy. A true democracy implies equal opportunity to all to enter the political arena. It does not imply that one citizen is, on the average, as well qualified as another for the work of government. But to get the best rulers, some means must be found to break down the artificial obstacles which stand in the way of the able poor man. Payment of members and of election expenses, political instruction beginning in the schools, the cheapening of university education, and the like, will suggest themselves to the thoughtful citizen as possible means to that end. True democracy must reject the view that the natural rulers of mankind are to be 1 See Sidney Low, The Governance of England^ ch. x.

THE CITIZEN AND THE STATE found among the leisured, rich, well horn, and educated classes. It is an assumption unsupported by fact. It seems to be widely held even by able thinkers, simply because in this country the poorer classes have hitherto had little opportunity of displaying their political administrative ability. As the greatest men in literature, science, and art, not to mention commerce and other fields of activity, have usually come from the humbler classes, it is surprising that this assumption has not been more vigorously criticised.

PART I LEGAL DUTIES CHAPTER in

The maintenance of public order, both internal and external, is necessary to the very existence of a State. The State must be safeguarded against disturbance from within and from without. It is therefore not surprising to find that law has made provision for this end, and the paramount duty imposed on a citizen is that of Allegiance. Allegiance is “ the tie, or ligamen, which binds the subject to the ruler, in return for the protection which the ruler affords to the subject.”^ An individual subject of a State owes it allegiance, and is entitled to its protection in person and in property. Even an alien or foreigner in the British dominions owes the king a local and temporary allegiance so long as he continues to remain there. But allegiance is incumbent upon a subject wherever he is, even though he be resident in a foreign country. Who is to be deemed a British subject is determined by law. Membership of the British Nation depends primarily upon birth — either ( 1 ) from parents who are members or (2) within British territory. All persons born within the King’s dominions, even of alien parents, are deemed natural-born British subjects, provided that their parents were not at the time of birth alien enemies.

1 Stephen’s Commentaries^ vol. ii., p. 433.

In the case of persons born in a foreign country, British nationality turns upon parentage. All persons born abroad, whose fathers or paternal grandfathers were natural-born British subjects, are themselves regarded as British subjects. British nationality is not determined solely by birth ; for a foreigner can become a naturalised British subject. But he must have resided for five years within the realm or been in the service of the Crown for the same period. He must then obtain a certificate of naturalisation from a Secretary of State, and take the oath of allegiance. That oath’^ is never formally required from natural-born subjects except on certain occasions, such as an appointment to a high office of State, e.g., a judgeship, or on being made a Justice of the Peace, and the like. Once a British subject, allegiance attaches wherever one may be. But the law allows of expatriation. Any British subject who, when in a foreign State, voluntarily becomes a naturalised subject of that State ceases to be a British subject.^ By becoming a member of another State a British subject can thus throw off his allegiance. Birth or consent make a British subject, and consent may unmake one. But so far we have not yet ascertained the nature of the civic duty termed Allegiance. Law defines it negatively. It enumerates what is not allegiance by defining treasonable offences ; for a breach of allegiance is treason.

Treason

High treason has always been regarded as the gravest of crimes which a subject can commit. It has stood as a crime apart from all other offences against the State, and the old punishment for it was barbarous in its severity. The traitor was carried on a hurdle to the place of execution. He was then hanged, but cut down while still alive. His entrails were torn out and burnt before his eyes. His

^ The oath is in the simple form: “I, . . . , do swear that I will he faithful and bear true allegiance to His Majesty King Edward vii., his heirs and successors, according to law. So help me God.”

2 Naturalisation Act of 1870, s. 6.

head was thereafter cut off, and his trunk divided into four quarters, which were disposed of at the King’s pleasure. Women traitors were burnt alive. Although the modern punishment has been reduced to simple execution, it would appear that such execution must still take place in public.

So serious is the crime of high treason that the mere mental intention to commit it constitutes it. This differentiates it from other crimes. For the intention to commit any other offence, without any attempt to carry it out, is not a crime. But as the existence of the mental intention to commit high treason must be proved, there must be some open act or deed evidencing such an intention ; for the thought of man is not otherwise triable. The publication of a writing shewing such intention is sufficient. But the publication of an abstract treatise nowadays, not referring to any particular design, would not be an overt act of treason ; nor would words loosely spoken constitute it. It is still uncertain whether an tmpublished writing would prove treasonable intent. In 1615 Peacham ^ was convicted of treason on account of some passages in a sermon which was found in his study and had never been published. He was not executed, but died in prison. In 1683 Sidney^ was convicted and executed because of an unpublished manuscript on Sovereignty which he had written. But Parliament subsequently reversed the conviction.

The original idea of high treason was a “ breach of the personal loyalty due to the lord paramount of the realm from each of his vassals.”® That loyalty 'was. personal, and due to the King de facto. This still remains part of the essence of the idea ; for aliens cannot even now commit the crime, unless they have come within British territory, and, by thus placing themselves within “ the King’s peace” {i.e. protection), incurred the obligation of

^ 2 State Trials^ p. 869.

2 9 State Trials., p. 818.

^ Prof. C. S. Kenny, Outlines of Criminal Law (2nd ed.), p. 272.

rendering him a local and temporary allegiance. What constituted a breach of loyalty to the King remained uncertain for some time, and this uncertainty was the occasion of passing the Treason Act of 1351. The object of that Act was to define treason. According to it, treason consisted of one or more of the following offences : —