Government and the state; a consideration of elementary principles and their practical application

Front matter

X \ t V

GIFT OF

Dr. ERNEST G. MOORE

CHAPTER VI Constitutions— Constructive (Continued) 260 PART I

PART I

ANYONE familiar with the polity of The United States of America, a polity in which the Representative System has its largest expression, and in which a certain degree of political work and duty is, in theory at least, assigned to every member of the community, would expect to discover that, of all subjects which attract the interest of humanity, the subject of Political Science would here find its most earnest students. One would expect to find this study pursued to its very furthest development. But the truth disappoints this natural expectation, and awakens the perception that it is perhaps, of all studies, the one most generally neglected. This statement will doubtless be received with amazement and incredulity. Most Americans suppose that politics, the very common topic of conversation, is the one subject they thoroughly understand. Of politics as usually meant, of the details of political party movements, of numerical calculations as to the chances of individual or of party success, of the career of political candidates, there is a very general knowledge; but of politics in a larger sense, of politics as a science, there is a remarkable want of appreciation in the people, an extraordinary lack of knowledge, even among those who perform the role of statesmanship on the legislative and administrative stage. The popular idea of politics may be gained from the popular use of the word. An editorial article of a prominent newspaper mentions a certain important financial measure then before Congress as a wise one which ought to become an act, and adds: "As there is absolutely no politics in it, it is possible that it may be passed."

To many persons the term "Political Science " seems to be considered synonymous with political economy. As a fact, the economic branch of the science is perhaps the least important of all its departments. This mental condition of a people is especially noticeable as the very creation of our Constitution was a work of phenomenal skill possessed by a body of men wonderfully well versed in that science whose study their descendants have neglected. The present condition of political knowledge is, it seems, owing to the system by which political affairs have to the present time been conducted, and to the existence in the American people of a peculiar mental trait.

During the whole period of our Constitutional history there has existed, and there still exists, a strange distrust of such knowledge as is the result of study and special application. The very ancient saying that "knowledge is power" is accepted as true, but with the added belief that in politics such power would assuredly be used to the detriment of the people. That this distrust of scientific knowledge should be among the ignorant classes in the country is not so much to be wondered at as is the fact that a similar feeling prevails among those whose education should have raised them above such prejudice. The common use of the word "doctrinaire " as a term of reproach exhibits this spirit. Immense reliance is placed on common sense. Common sense in the ordinary affairs of life is a very good thing. The every-day physical ailments may be successfully treated by common sense, but when they become serious we are prone to ask the aid of trained medical skill. The prevalence of this sentiment tends to discourage scientific study.

Another cause leading to the same result is the existence of a trait, extremely well marked in the American people, of astonishing quickness of apprehension and readiness in the adoption of new and untried occupations. This remarkable aptitude naturally fosters an undervaluation of patient study and application, and in all the occupations of life effects an incompleteness and a lack of stability. The reliance on intuitive skill to overcome the difficulties of new positions is fatal to excellence. But there is no hesitancy on the part of most Americans in undertaking any new office without any previous training in its duties. Accordingly we seldom find public offices filled by those who have made statesmanship the study and occupation of their lives. The role is adopted as a companion to other professions, mostly from the distinction it confers, or for the power it endows.

Within a very recent period there has been observed a growing belief that past methods have been erroneous: that excellence in any occupation, however humble or however exalted, is attained only by careful training and study; that in all political affairs the public interests will best be served by those who shall have been carefully trained in the profession they undertake to practise; that ignorance is not a qualification for office nor a guaranty of honesty. To meet this need, the study of political science has recently been introduced into many colleges. But even now there seems to be a tendency to the treatment of special subjects, with an undue prominence in economic matter, rather than to a complete instruction in the science of politics as a whole. In all this there is no disparagement of whatever good work in the political field has been accomplished during the last century of years; but one may safely assert that more might have been accomplished of good, and more of evil have been avoided, by the use of better methods of political practice. Thanks to the structure erected by our fathers, there has been and still is an opportunity, hardly to be found elsewhere, freed as we are from ancient prejudices and usages, of putting into practice the most highly evolved and perfected of political principles. But the methods must correspond with the principles. Whoever intrudes his views on public notice should justify the intrusion by its supposed need, with the hope that among the many works in the same field the labour of each may contribute to the general purpose.

Before setting forth the scheme on which a science is to be presented, it is useful and instructive to compute the latitude and longitude of that science, to find its place in the system of sciences; more important still, to find out the relationship it bears to its nearest kindred sciences. Between sciences of a certain class there is an interdependence. They mutually assist and explain each other.

Whatever exists and may be the object of scientific investigation is to be found in nature. Human efforts create nothing; they can only combine and utilise existing things. That such efforts may be efficient they must act in obedience to natural laws. The object of scientific research is to ascertain nature's laws and the properties of natural things; and this is the limit of science. Science is the precursor of art, and its director. Art acting alone acts blindly: it may by accident produce a fortunate effect, but it can have no assurance that the end it seeks will be attained. To accomplish the best results science and art should move hand in hand. The term "nature " is by no means to be limited in its signification to material things and the laws which govern them. The intellect with its various properties is a part of nature as truly as are all material objects. Intellectual and moral laws there are as well as physical, and equally within the power of scientific examination. In fact, without the existence of laws all research would be futile. Chance offers no ground for science. Nature presents two grand divisions. In one are all material things. In the other is everything made possible by the existence of an intellect in man. Corresponding to these are the two branches of physical, and mental or moral science. It is to be regretted that for the latter class there is no distinctly appropriate designation. Physics has been seized upon to describe the science of matter, though etymologically it is much more comprehensive. The terms "moral" and "mental" have each a special signification, the one indicating qualities of right and wrong, the other describing intellectual action. The term "moral " will here be used to comprehend qualities and actions non-physical. On the part of students of moral science a protest against the ways of students of physical science is here appropriate. They have applied in their own sphere words having a more enlarged signification. They claim "science " as their own, and leave to others the vague and unpopular term "philosophy." Physics is nature, and nature is the base of all sciences. There is still another class of sciences termed "abstract," comprehending the idea of individual existences, and of extension, the domain of mathematics; of reasoning in general, the domain of logic; and of possibly the general theory of language. These three classes cover the whole realm of scientific investigation, the abstract, the physical, the moral. Within the last of these Political Science enrolls itself.

The different departments of moral science seem to have been created by a species of evolution in scientific research. The intellect itself, with its properties, powers, and modes of action, gives rise to the science of mental philosophy or psychology. The powers of perception, within the intellect, of right and wrong, of duties and obligations, form the science of moral philosophy or ethics. The necessities of social existence create the science of politics. Man is thus viewed in the three phases of an intellectual being, a moral being, and a social being. These sciences are closely allied. Ethics depends on the properties of the mind. Politics has its foundation in ethics.

Having placed politics among the sciences, and defined its relative position, the question may properly be asked whether its claim to that position is warranted, whether it deserves the name of science at all. To most persons politics seems so essentially practical in its nature that the term "art " would appear a more precise designation. As has before been pointed out, science and art are so intimately associated that in many cases it is by no means easy to determine the dividing line, not always distinctly marked. To ascertain the justness of the claim, let us consider what that is to which the name "Political Science" is applied.

Absolute isolation is almost an impossibility. It is not good for man to be alone, in any sense of the expression. In such condition his nature is stunted, his powers are undeveloped. Everything points to the social state as that in which man finds the opportunities for the exercise of all his faculties. The apparent paradox is nevertheless true that man in nature is man in society. How the various states of society which we see before us have arisen, it is difficult to know. They come from combinations of circumstances difficult to trace, and impossible to control. However created, of one thing we may be sure, that their sole purpose, the only legitimate and natural one, is to promote the general welfare of those who compose them, and this maxim is true that states of society are entitled to approval or to condemnation exactly as they fulfil or fail to fulfil this purpose. Ascertained purpose furnishes the scientific basis of the study. General welfare is a comprehensive term, and in fact Political Science is a comprehensive subject. Still it is possible to fix a limit beyond which State authority should not extend, or rather to set forth the principles to which in each case the question may be referred. The problem is one which ages have grappled with. The contest between excessive authority on the one side and popular rights on the other side has always been waged ; but it has been an unequal contest. It is a peculiarity of State power that there is no tribunal before which it can be summoned. The wager of battle is the old mode of trial. Injuries are long submitted to before taking this dread appeal. The advantage in the contest is thus always on the side of the present power. It will be the chief glory of modern systems to avert this appeal by appointing a method within their Constitutions for correcting abuses or effecting reform.

The theory of political societies is that the guardianship of the rights which belong to man is deputed to the governing body, that by this means harmony is secured, individual contention is avoided, the weak are protected against the power of the strong, and in fact the general rights are better secured than if left to individual care. In addition certain co-operative advantages are obtained by works of a general character not within individual power to effect. This is what government proposes to itself to accomplish and what it has for ages been doing with varying degrees of success. To determine what are the human rights within the province of the society to protect, the mental and moral constitution of man must be investigated. The intimate association of politics with ethical science is here apparent. Ethics unfolds the rights: but to determine which of them are within the guardant duty of the State, and which of them are clearly without its province, is one of the most difficult problems, — and to this Political Science addresses itself. In all this there is plenty of room for scientific research; but Political Science does not stop here. Having fixed the end to be accomplished, the means is still to be considered. The different systems of government which may exist, the peculiar merits belonging to each, the lO GOVERNMENT AND THE STATE

union of these merits in another form, the character of the peoples to which governmental systems are applied, the fitness of the instrument to its object, the special study of cause and effect in the results of political measures, all to be studied in strict accord with scientific principles, entitle Political Science to a high rank among the sciences.

History has as many departments as there are topics of human interest. It is to the moral sciences what experiment is to the physical sciences. It furnishes facts from which by induction laws are established, and a test for the verification of theories. The history of communities, their growth, and their form of government, illustrate Constitutional systems. The history of wars, of treaties, of the rise of customs, shows the genesis of International Law. The history of commerce, of finance, and of industrial movements gives a clue to methods of economic administration. The history of judicial and municipal forms enlightens jurisprudence. Psychology is explained by the growth of intellect and modes of thought; ethics, by the growth of morals; ethnology, by the changes and development of races and peoples. It is not alone in the history of the past that Political Science finds its experiments. Modern practices and modern theories are constantly in evidence. There is a clinical study in progress in every parliament, in every executive action.

Wherever the relation of the ruler and the ruled exists, there is the province of Politics. Its scope is so large that it admits of several departments, each of which may be the subject of special study. The first department is that of government in general and Constitutional systems. It considers the purpose of government, the rights of man as affected by the fact of society, the limit of State action and the proper functions of the State, the methods in which those functions may best be performed, the

GENERAL INTRODUCTION II

consideration of different systems of government, and the political adaptation of Constitutional systems to the character and genius of the people to which they are applied. The second department, that of jurisprudence, treats of the rights and duties of the citizens of a State towards one another and towards the State, and of the State towards its citizens, together with the methods of enforcement of such rights and such duties. The third department, that of international law, considers States as entities, and persons only as citizens of a State. In the family of nations the State represents all its citizens. The fourth department is political economy, treating of material wealth and comfort. Political Science regards this only as it affects methods clearly within the scope of State action. These divisions are exhaustive, and are sufficiently comprehensive to engage separate attention. Synthetically they form a body of science through the whole of which there run as guide and corrective the principles of Ethics.

The dignity of a study may be measured by the importance of the ends it is designed to accomplish. A study whose purpose is to maintain ethical rights, to assure the results of labour, to multiply the means of human enjoyment, deserves a high place among the sciences: and these are the objects of Political Science.

The above premises have set forth the character of this important study. The following is an outline of the basis and system on which to construct the science of politics.

Science, as before stated, is an investigation of the laws of nature. Art is action in accordance with those ascertained laws. The laws of man's nature form the subject of the study. From the investigation of man's nature in all its aspects are derived certain rights which come from the need of development of the various faculties with which he is endowed. The rights create the obligation to maintain them as to oneself, and to respect them in others. Social life is a necessity of man's nature, and of the circumstances of his place in the world. The attrition of social life to a certain extent modifies and limits man's ethical rights, but renders the aggregate of human rights more perfect and better secured than in the solitary condition. From this necessary social life arise nations and states. The care and protection of some human rights are deputed to the governmental authority, and the care of rights so deputed, and as modified by social relations, becomes an obligation, a State duty. What rights are left to individual care and what to the State must depend on the character of the community and of the governmental system, and the degree of advancement which both have attained, but when so deputed their protection is a State duty paramount to all considerations.

Chapter I

GOVERNMENT, like all human institutions, must show its title to existence. Whatever is permitted to exist must receive such permission only upon showing a good reason why it should be. The paramount reason is necessity. This one is so obvious and, when admitted, so satisfactory, that it is needless to seek further, although many others to be hereafter adverted to have been alleged.

Individual action looks to one intellect alone for its direction ; but whenever several persons are united for a common purpose, there must be some direction to that purpose, and those to whom that direction is entrusted must, within the limits of the authority confided to them, have the power of requiring and enforcing obedience to that authority. This is true of all societies from the smallest to the largest, from those united for the purpose of profit or pleasure to that largest type of community, a nation, whose purpose is, or should be, the general welfare of the community. If the question were asked by any member of a society, no matter what, why the direction of the affairs of the society were entrusted to some only of its members, the answer would be that without such direction harmony could not exist and the purposes for which such society was organised could not be fulfilled ; if again asked why the methods by which this governing body should act are prescribed, or why the rulers to whom the government of the society is entrusted are selected, the answer would be that such methods are supposed to be adapted to carry out the purpose of the society, and that such men or classes of men are supposed to be fitted for its administration. These answers, which must apply to every state of society, would contain the pervading idea of necessity as the reason of the existence of government, but would also prefigure the idea of method and of Constitutions of the governing body. If, then, as must be admitted, a sufficient and satisfactory reason for the existence of government is found in necessity, why consider any other? Simply because the fact may not be overlooked that other reasons have, in the past, been alleged by many philosophers and statesmen.

Political history is full of speculation as to the need and the origin of government. These speculations are not instructive in governmental science, but they are curious and interesting as showing the bent of the human mind in certain directions. Though assuming to be general in their character, these speculations really have been directed toward some special governmental system, either with a view to sustain it or to overthrow it. Naturally these inquiries on this subject have divided into two classes, as the object may be to preserve or destroy.

The starting-point is the relation which exists between the ruler and the ruled. They who desire to strengthen the authority and power of a ruler adopt one view of this relation; and it may be noted that the stronger the opposition to this authority, the stronger is the sanction required. They on the other hand who find a present rule intolerable, and seek a change, view the relation in a different light. The legitimacy of an existing government was supposed to be strengthened by ascribing to it a divine origin, or a divine sanction, by an extension of the patriarchal idea, by conquest and the rights resulting therefrom, by an original grant of authority become absolute. The most effective support of a ruler was the notion of divine right, appealing as it did to the religious feeling of men and sustained as it usually was by the predominant religious establishment. The right of revolt was supposed to be asserted in imagining a compact between the ruler and the ruled, a breach of which compact on the one side would destroy obligation on the other. Whether to support tyranny or inaugurate rebellion, it is thought necessary to satisfy one's conscience, or to exhibit to the world logical reasons for the course adopted. Many of these theories were built upon fanciful notions respecting the origin of government. That some form of government existed wherever any community of men was found is indubitably true. In the rudest tribes of men the functions of government were very limited and its systems simple, the ruler, whether holding his office by usurpation, by force, or by a conviction on the part of the people of his superior qualification for the office, was most probably the one best fitted to perform the simple duties required by the organisation.

This is a far better conception of legitimacy than that expressed in more recent views. The genesis of system it is difficult to trace or an uninterrupted succession difficult to establish. Even supposing them proved, they are useless to support authority. Neither antiquity nor continued succession can give to government a sanction superior to that of purpose and fitness.

Not all political thinkers have been biassed in their opinions by a predilection for special forms and by a necessity of justifying such forms. Some have viewed the matter from a broader standpoint, at the same time they have been influenced by the tone of thought which prevailed in the time at which they wrote. The Grecian and the Roman conception of government was more nearly correct than that expressed by writers of the seventeenth and eighteenth centuries. And this fact may be explained by the historical events occurring between these periods. A disruption of old civilisations, a relapse into semi-barbarism, a gradual development of systems in their new lines, impressed the barbaric notion of right and strength upon the minds of men. A long-continued succession gives an impress of legitimacy. This may account for the tone of thought prevalent until a comparatively recent period, and not yet extinct.

One of the consequences of this notion was that condition of society where the line of division between the ruling classes and the people was distinctly marked, where government and its attendant privileges and means of wealth were considered as property to be contended for by rival States or by factions within States. Such a condition seems a monstrous perversion of right. Its parallel is found to-day in the strife of parties within a State for the acquisition of what is termed power. The word itself indicates the design, which ought to be the ability to establish and conduct a policy and to sustain principles favourable to the common good, but which is the ability to obtain personal profit and party aggrandisement.

The views above alluded to may not be treated as mere idle theories. They must be regarded in the light of their effects. Man is very much governed by theories and precedents. Their consequences may be profitable or disastrous according to the justness of their conception. It is the privilege of the twentieth century to discard all speculations as to the origin of government, or to indulge them only as curious fancies, to find the true raison d'etre of government in the fact that without it society could not exist nor could civilisation advance, to determine from the nature of man, in his individual and social aspect, what are the true purposes and objects of government, and to ascertain the methods by which those objects may be best accomplished. The right to exist we have derived from necessity and from that only; the other essential features are to be considered in later chapters. In the meantime it is important to consider on what government acts. It acts on states of society.

Society is a word of comprehensive import. It includes all association of individuals for a specific purpose. Here we are concerned only with societies political, and of them directly with that highest form designated by the term "State." A very extended vocabulary in any language may give to the language a great variety and richness of expression, but that quality is usually purchased at the expense of exactness. To avoid confusion, then, it is essential that where a word may be used variously, its connotation should be carefully fixed for its use in any one treatise. It is believed that the word "State " designating a body of people united for general welfare, and under one government which admits of no superior, accords both with scientific use and with one form of popular parlance. The word "nation " is of almost equivalent import, but it has been suggested that the word also implies the existence of some tie of birth or of common descent, which may not be found among the people as described above by the term "State," and that there are States which are not nations, as instanced by the Netherlands in 181 5 and by Austria at the present time. International law, though not in itself a felicitous term, is mostly formed by agreements between sovereign powers, applying to them the term "nations." Yet the criticism on the word seems just, viz., that the word connotes a quality which may not appertain to a sovereign body called a State. The expressions, State power or duty or allegiance, are frequently applied to mere divisions of general government, and properly so, as whatever may be the divisions and subdivisions of governmental functions, there always remains the idea of delegation of authority from, or of ultimate appeal to, a sovereign body. Precisely in this way may the term be applied to the bodies called States within The United States of America. Within their jurisdiction their acts are acts of State power. As a historic fact some of them were formerly States in the fullest sense; as a present fact they are within the Constitution of The United States.

There is a marked analogy between individuals and states or conditions of society. In the first the coexistence of certain physical, mental, and moral qualities and their interaction form what is termed the character of the individual man. Similarly, communities have a marked and distinctive character. Though composed of an immense number of individuals, differing greatly among themselves, there is a noticeable preponderance of certain qualities which in the aggregate form the character of a people. As expressed by J. Stuart Mill, the simultaneous state of great social facts, as degree of intellectual and moral culture, the state of industry, the existence of classes and their relations, common beliefs on important subjects, aesthetic development, customs, etc., are at least some of the facts which go to form the character of a State, some of the features by which communities are distinguished from other communities. The attempt has been made by some philosophers to explain the development of human character, to ascertain the laws by the operation of which changes in individual character are effected. A similar attempt has been made to ascertain the laws affecting social development, to show how communities have become what they are at any one time, the causes which have produced certain effects in the past and from which similar effects may be expected in the future. These causes are set forth in Buckle's History of Civilisation, and form a very curious and instructive study.

They are social dynamics. But it is with social statics that governmental science has to deal. We recognise the fact that the conditions of States are ever changing with advancing civilisation, with a variation in the density of the population, and with a variety of circumstances affecting the character of a people; and the further fact, that the methods of government must adapt themselves to their changing conditions. We admit, also, that governments deal with existing states of society. Hence the importance of studying societies, particularly with regard to the qualities upon the existence and the degree of which the force, the stability, and the methods of government must depend. It may be confidently stated that any absolute Constitution, though founded on the most correct principles derived from the nature of man, would, if applied to any existing society, probably be misapplied. The reason is obvious. There must be a fitness between the instrument and the object. An ideal Constitution is adapted only to an ideal society. It would be the most remote chance that a ready-made Constitution should find a place. The garment must be fitted to the wearer. The phrase, "Who rules o'er freemen should himself be free," though ridiculed by Dr. Johnson, expresses a political truth. Though government is based on scientific principles, as will be shown in the next chapter, yet it is practical in its methods and operates on societies as they are found to be. It is therefore of the highest moment to analyse society in general, to learn the elements of which society is composed, and of any one society to discover the qualities which taken together determine the character of that society — the social ethology.