The Nature and Office of the State

Front matter

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Preface

The following Treatise was composed some years ago, and is published at this time in consequence of recent events having given a fresh interest to the subject which it discusses. But as the writer has seen no reason to alter the views he had long before adopted, he has printed the work nearly as it was originally written, with the exception of a few paragraphs which were recently added.

This is stated in order to explain why it is that in a work on such a subject the reader will find very sUght reference made to the many striking occurrences which have marked this year, and the interesting questions to which they have given rise.

Perhaps an explanation is also required why certain of the subjects introduced in the course of the discussion receive a consideration very inadequate to their intrinsic importance. The reason will be found in the purpose for which they were introduced, which

Vm PREFACE.

was not to discuss them, but simply to show that the relation in which they stand to the State harmonized with the writer's theory of its nature and oflBce. And as it seemed possible to do this by taking a very general notice of the matters referred to, no more has been attempted.

It will be seen that the writer has confined his view exclusively to the internal construction and action of States. But he might with great advantage have made it embrace their external relations and operations. And he persuades himself, that whoever may survey the sphere where Nations are the actors, and of which the principles and rules are embodied in the code of International Law, will find that the doctrines he has ventured to propound are not only consonant with all the phenomena, but supply a most natural and satisfactory interpretation of them.

THE If ATUEE AND OFFICE OF THE STATE,

Chapter I. Preliminary Observations

The State a permanent moral Institute. — ^Its proyince andlaws deducible from its end. — Opinions respecting its end.— Its end not human good

in general ^Nor all social good. — ^The Political one of several natural

Societies. — The State distinct from Society in general.

In every philosophical enquiry into the nq,ture of the body politic, it is assumed, that that concourse of men which we term a Nation, or People, is not a transitory and changeable league, but a stable society, having a fixed moral sphere and ascertainable laws. T?pon any other supposition, the enquiry would be manifestly idle, since none of those general propositions which constitute philosophical knowledge, could ever be laid down respecting bodies politic, if they had no settled rule or province, but were dependent for their order, object, and laws, upon the accidental circumstances in which each arose, or the arbitrary will of its framers. Even in that case, indeed, philosophy ipight have something to say regarding them ;

y^ PRELIMINARY OBSERVATIONS.

but it would be simply to announce that nothing could be known ; that there was in truth no science of Politics, no right or wrong in that great sphere of human action ; and that men were bound to accept all political constitutions as lawful, however barbarous, disorderly, and mischievous they might be, and however discordant and diverse from one another.

Any such conclusion, however, is surely unreasonable. On the contrary, we are bound to believe that there is an immutable idea or form of poUtical society, which reason may discover, and towards the realization of which men may be seen steadily advancing in every improving era. There is a lex hgum in the political as in the rest of the moral world, a law which is the standard of excellence. No reasoner upon politics, or, indeed, upon any subject of morals, but assumes the existence, in rerum natura, of such a primordial and governing model. Men may differ, and they have differed widely respecting its exact form and features ; and politicians may defend as conformable to it, political institutions and laws of the most varied and discordant characters. But such differences of opinion only prove that their knowledge is yet imperfect ; while their disputatious attempts to convert one another to their respective beliefs, are clear evidence of a common persuasion, that there is one form of political society which is truly perfect ; which is cognizable by enlightened reason ; and which carries in it a title and a power to bind everywhere the conscience. Upon no other footing, indeed, could they be heard to reason ; for on none other is reasoning possible ; the sole alternative being the humbling, and disastrous conclusion, that bodies politic are things irrational and lawless, the creatures of a sort of accidental fatality, with which the philosopher has nothing to do, except perhaps the task of reconciling men to a patient endurance of that form under which they have separately fallen.

I have premised these observations respecting the existence of a moral or philosophical standard of political society, which may be different from, and is superior to the actual constitution and law of any particular State, for the purpose of indicating at the outset, the nature of the following discussion ; which will be directed towards establishing the laws of political society upon a basis of permanent and universal reasons, in opposition to the foimdations, whether of old custom, or of the mere will and convention of men, few or many, upon which they have hitherto commonly rested, and with which, as a suflScient ground and warrant for them, men havo too generally been contented. There is, I am aware, a class of persons (very numerous in this country) who deprecate earnestly the notion of a difference in politics, between what actually is, and what ought to be law ; and who would teach us to look upon that most true and salutary distinction as a false and dangerous dogma ; partly prompted by their personal interests, which are dependent upon existing institutions, and would be benefited by the same unqualified moral sanction being annexed to them, which undeniably hallows the political ordinance in general ; and partly blinded by the tendency of the human intellect to reduce its abstract ideas of moral things to the dimensions and shape of the living examples with which it is famiUar. But till this error is renounced, and men's minds are elevated to the habitual contemplation of political law in its state of native purity, rather than in its usual clothing of statutes, customs, and precedents, society must have but an imperfect security against many evils ; and especially against the master evil of tyranny. Not even those popular forms of government, which seem to many to be identical with liberty, will much avail to ward it oflF ; for although they may avert the proper mischiefs that flow from the supremacy of a single will, yet if the people, in whom they vest supreme power, are brought up in the beUef of the grand doctrine of tyrants, that the will of the ruler is the standard of political right, we may expect to see, under them, an administration as immoral and as oppressive, though not, it may be, by the same kind of miseries, as that of the wickedest single despot.

The course generally taken by scientific enquirers into the province and laws of the State or body poUtic, has been to lay down what is its end or object, and from thence to infer what are its powers and duties. They have followed this course upon the principle (which when candidly interpreted must be allowed to be sound,) that if the end is lawful and dutiful, so are the means necessary to obtain it.i

The point of moment with them, therefore, has always been, to define with accuracy the end of political society. And here, as might be expected, there have been much disagreement and frequent errors. Predisposed to adopt or reject particular institutions, men have shaped their theories by their likings ; and have arbitrarily imagined a variety of fictitious ends, that they might justify or condemn whatever set of means pleased or oflFended their interest or prejudices.

Without presuming to review or decide upon the various theories, I may mention generally, that they seem to be divisible into the two great classes of those which assign to the State a universal, and those which assign to it a limited end or object. Among the former may be enumerated the theory of Aristotle, which defines the object of Government to be the " well-being" in general of man ; of Paley, who states it to be the " public good or welfare ;" and of Bentham, who describes it as the " greatest happiness of the greatest number.'^ Among the latter, we may rank the theories of Locke, of Warburton, and others, including some distinguished continental jurists, who vary in their phraseology, some describing the end of the State as civil utility, others as " security for life, liberty, and property,'' others as " civil peace," others as " security against injury f but all agreeing to marfc a bounded, in contradistinction to the apparently universal jurisdiction over human affairs, assigned to political society by the terms of the other theory.

Respecting that other theory it is obvious to remark, that its account of the end of the State, is in one sense undoubtedly true. The " well-being'^ or " happiness" of man may be justly said to be the end of political society. But the same thing is true of all individual men, and of all their separate powers and endowments ; and more especially of all the combinations and relations into which one man can enter with other men. This is indeed one chief end of human existence in every form. But it is not the pecuKar and specific end of political society, being, on the contrary, shared with it by every other species of human association. It therefore throws no light upon the nature and functions of one, more than upon those of any other ; and the definition though true> is unscientific and useless. Even from this limited praise, however, we must except the form in which it has been stated by Mr. Bentham, which is pregnant with error. It seems to take the element of numbers into the calculation of what is morally right, than which nothing can be more alien to the nature of morality, or would tend more to debase and adulterate it. Mr. Bentham would have come nearer to the truth, had he adhered more closely to the author from whom, probably, he took his celebrated definition, and who gives to the greatest happiness of the greatest number its proper place, of being the practical sign or evidence that a government is good, instead of raising it to be the peculiar final end of the institute itself. " There is then the most infallible proof of good government," says the author of a singularly able Treatise on the Polity and Legislation of the Romans, " when the greatest sum of happiness is divided among the greatest number of persons."!

In ascribing so comprehensive an end to the body poKtic, as the " well-being" of man, or his perfection or happiness in general, the ancient theorists seem to have been inspired by a more rational and consistent philosophy, than their followers among the moderns. To this idea of it, the Grecian philosophers were led by the experience of their political world. The smallness of the states composing their political system, and their active rivalry with each other, engendered in their members an intense spirit of civism, which made each man regard his State as a sort of impersonation of himself. Its security, independence, and glory, were near to his personal interests, and ever present to his mind ; they could be maintained only by his constant personal care ; and while engaged in this labour, he was discharging the highest function of a man. In their estimation the State was every thing, the Individual nothing ; and hence the whole Public PoUty was to be directed to the single end, of bringing each citizen into the highest condition of fitness for the public service. In order, therefore, that not one particle of the power and energy

1 " La signe infaillible d'un bon Gouvernement, c'est la plus grande Bomme de bonheur divisee entre le plus grand nombre d'hommes." Eisai 8ur la PolUique et la Legislation des Bomains, page 179. I quote from what professes to be a translation into French, of an Italian work published anonymously in 1772. The translation, which is printed at Paris, in the Third year of the Republic, states that the work was attributed to yarious eminent Italians, and among others to Beccaria.

of any one individual, might run to waste, or be diverted,- it was held to be the concern of the law, first, to devise the model of a perfect citizen, and next, by a system of discipline, to mould, or rather to distort, into agreement with it, the characters of all its members. For this purpose, the public discipline was to embrace the whole life of a man, from his infancy up to his mature age, and all his conditions and relations, whether domestic, social, religious, industrial, or poHtical. He was to be ever the servant, or rather instrument, and slave of the State, neither retaining any personal independence, nor owning any separate or even intermediate authority; and reaping as the sole but sufficient reward of this abnegation of personality and freedom, the applause of his compatriotsj and the public renown of his state. We may gain some insight into the principle, from the example of the Spartan Republic, which is well known to have been the admiration of Grecian political philosophy. In that strange community, a man was begotten, born and suckled ; he ate, drank, dressed ; he thought, spoke^ walked, worked, fought, diverted himself, loved, married, worshipped — ^learned, in short, every thing he knew, and executed every thing he did, according to a poKtical rule, the single aim of which was to make each citizen a fit instrument for public purposes. Living in a poUtical system which induced this stern subjugation of all persons and things, to the one great authority of the State, and where the Spartan people, among whom the subjugation was most thorough and firm, long bore away the palm of civic glory from all competitors, it is not wonderful, that the Grecian philosophers should have formed very exgjjfced conceptions of the rights and functions of the b^HT politic* They held, accordingly, that the poUtical was the perfect condition of man ; not only crowning all others, and including all as the whole includes the parts ; but in a manner extinguishing or superseding every other, so that a man, when he entered into it, seems to have ceased, in their view, to retain any personality, or at least any independent rights as an individual, or any independent relations, either domestic or social, with other men ; but to have become in every thing, a mere limb or member of the State, bound to take from the pubUc will, the order of his whole life. With such experience and such ideas, it was natural that in their speculations they should assign the highest possible function to the political society, and hold it to embrace in its design nothing short of the whole " well-being" of man»

We must conclude that there is something plausible and seductive in systems which endue political authority with a supereminent and absolute jurisdiction over the whole life of its subjects, when we observe how extensively they have prevailed in the world. The polities under which the greater part of the East was anciently governed, seem to have been of this kind ; for in them, not only that which in our days would be termed public affairs, and public institutions, but also the private life and manners of their subjects, their rank, their condition, mode of life, and daily occupations, seem all to have been fixed by the law. This was done by various devices, and more especially through the influence of reUfijJin, and by the system of castes, the sole instrun^^ by which any such rule could be set up or maintained throughout an extensive dominion. The difference, in a philosophic view, between these polities and that which Greece admired, may perhaps be reduced to a difference in the opinion entertained by the founders of the one and the other, concerning the public interest, toward the furtherance of which the laws ought to be directed. In the East men preferred a reUgious interest ; in Greece a secular. The Eastern poUties were theocracies; those of Greece were civil societies. Josephus has somewhere in his works noticed the analogy, and, at the same time, hit the point of difference, when speaking of the polity of Moses, (the most thorough, and yet, so to speak, the most civil and free of all theocracies,) he observes, that while other lawgivers (meaning the Grecian) framed their laws on the principle that religion was a part merely of civic virtue, Moses held all the virtues to be parts of religion.

But, if we consult experience, we shall perceive, that the universal and intimate control of the conduct of its subjects, which this principle makes the business of the State, is incompatible with change, and so is incompatible with the true function of a man, which is to grow in civiUzation. The condition of every people who are under such a rule, must be a stationary one ; as it is very evident, that a change cannot take place by individual will, for thereby the subjects might escape from the public rule; and cannot be made by the State itself, for implying, as

^BELIMINARY OBSERVATIONS. 11

it would do, previous error or^imperfection, it would be at variance with the necessarjPpretensions^of the system to infallibility, and would strike at the root of its authority. Add to this, that, even if otherwise unobjectionable, the extreme practical difficulty of getting a whole people to adopt a change with the necessary simultaneousness and unanimity, would of itself prevent the attempt. Whenever, accordingly, room is to be made for the advance of society, the public authority must retire within a narrowed jurisdiction, giving up for its impracticability, if for no better reason, the office of presiding over the whole Ufe of its subjects. The progress of such a restriction of its superintendence is, not indeed exemplified, but indicated, in the history of the Roman RepubUc. In its earlier ages, the public laws and customs partook of the educational character of the Lycurgan and theocratic polity. But as the Republic extended its territory, and brought under its dominion various tribes and nations, each having its own notions, manners, and laws, the Roman legislators rose, in their ideas, to a clear conception of the true rule of civil life ; of which the fundamental principle is, the personal liberty of man. Thence within the bosom of that Repubhc, was founded and built up that grand monument of human wisdom, the civil law, which, moulding itself by the standard of universal reason and equity, provided in its letter, and most probably secured in fact, a large measure of civil liberty to its subjects, of security in the possession and freedom in the use of property, as weU as of freedom of industry and

12 PRELIMINAllY OBSERVATIONS.

enterprise. Ostensibl;f, indeed, this law or rule of life stijl bore the Appearance of State superintendence, inasmuch as it proceeded from the State as its author. But when examined it was apparent that the State had, in its turn, taken it, in its great outlines, from the higher source of reason, and general expedience, and that its real effect was to leave each individual man his own master within a certain wide sphere, and to give ample room for the spontaneous and undirected growth of nearly every kind and variety of civilization. It is true, indeed, that this law was no protection against the despotism of the public authorities themselves, who frequently gratified their own caprices by mere military execution. But these violations of the ordinary immunities of the subject, were Uke local and passing storms in a wide and serene sky. The only department within which, in regular times, the Government continued really to order all things by its direct and immediate will, exercising a true personal dominion and scrutiny, was that of pubUc affairs, including rehgion, which, from its being the cause of great public movements, rulers have always liked to retain in their power. Even religion itself was, in the progress of time, disjoined in some measure from the imperial authority, by the rise within the Empire of the Christian community; which, carrying into the West the ideas indigenous to the Eastern mind, of the supremacy of religion over every other human interest, prepared the way for the release of it also from the grasp of the State. It even went farther, and threatened for a time to establish over the Western world, a

PBELIMINARY OBSERVATIONS. 13

species of theocracy like that to which the East was familiar. But many circumstances none of the least being a certain resistant influence in the spirit and institutions of the religion which was thus sought to be abused by its professors, prevented this catastrophe, and limited the result to the establishment of a distinction (more obvious, however, in theory than observed in practice) between the ecclesiastical and civil provinces, and a restriction of the authority of the State in matters of religion.

It appears, then, that if we would be instructed by the course of nature, and make our account of her laws, statements of facts, rather than of our own likings and fancies, we must hold the end or object, peculiar to political society, to be somewhat less extensive than the whole good, welfare, or happiness of its subjects. We must assign to it a limited and distinctive sphere of good ; or rather, we must confine it to the use of one or more specific means of attaining good. We must adhere to the creed of Locke, rather than of Aristotle.

The upholders of that more limited theory, which alone is compatible with the experience of modem times, have generally started, in their explanations of it, from the assumption or the supposition that man's first and natural condition is that of isolation ; and that while in that condition he is morally, as well as actually, his own absolute master. From this they have inferred, that he comes into society, or the political state, by an act of absolute freedom ; whereby he resigns to the social union a portion (as Locke supposed), or the whole (as Hobbes imagined), of his individual dominion and liberty, for the purpose, in the first place, of avoiding the ills to which isolation exposed him, and, in the next place, of attaining the good which co-operation only can procure.

According to this view, the end of the body politic would seem to include the whole good that flows from society.^ I am incUned to question this theory both in its foundation and its result. When a great authority^ on poUtical history informs us, that " man was created free and independent,'' it seems to me that he utters what is consistent neither with historical, nor with moral truth. That, in point of fact, men ever were in a condition of individual liberty, there is no evidence ; and in point of right, men certainly were never entitled to such independence, or to freedom from the wholesome bondage of society. That is manifestly the truly natural, or at least, the only rightfiil condition of a man, wherein his powers and endowments are most fully developed, and the whole laws of his nature are in operation. Into this condition, if he is not there already, man is bound to hasten ; nor can he pretend to the right of living in a state of imperfection and mutilation. But it is evident, that nowhere is the human being that full-grown creature which he is designed to be, except in society. He is made for society. His good hes in it, and through it. And he can have no right to remain out of it, not only because the laws of his

1 Locke, indeed, limited it to temporal good, excluding religious, as not having its fruition in this world.

2 Goguet. Origin of Laws, part i., hook i.

nature drive him into it, as his proper condition, but also because by his capacities and by his position on this earth, he stands in a relation to his fellow-men which gives them a title to demand his co-operation with them, and to compel him to come in. These are doctrines which not only flow directly from the same sources in reason and experience, from which we derive our whole code of moral rights and duties, but which are necessary to explain and reconcile with justice, the great phenomena in political morality ; to explain for instance, how it is that municipal laws (when in their matter morally lawfiil) may be justly enforced against those who never assented to them, whether as having been ignorant of them, or as having had no share in their enactment, or as having dissented from them ; to tell how a man may be, unconsciously and without his will, bom into allegiance and subjection to a state ; and to justify that sovereign prerogative of rule, and paramount right to be upheld in independence and security, which are universally arrogated by governments.

There are, however, other objections to this opinion. It either is insuflBcient, as giving no reason for that specific form of society, termed the body politic ;i or it is erroneous in representing the body politic as the just opposite and the sole antagonist of the supposed state of isolation, and political authority as the cure for all the ills and defects of individual independence.

In this latter view, which is that of its propounders, it leads to the inference that the State has for its object, the whole social well-being of its subjects. This theory, I am aware, is not dependent upon the opinion in question, but is adopted perhaps on more rational grounds, by persons who reject it.^ Respecting it I would observe, that it is a Uttle less objectionable than the doctrine formerly considered, but only a little ; for although it exempts man from political control, in matters which, so to speak, terminate within himself, and show themselves by no outward relations, it yet subjects him to such jurisdiction and regulation in all that requires union and co-operation with others. Tracing all such unions to the political state, as their creator as well as their protector, it places them all under its superintendence and allegiance. I persuade myself that this is erroneous ; and that upon due examination and just discrimina-

^ Thus, in a recent publication of great value, it is said that the State has for its " legitimate objects, all those things that are necessary or highly important for man, and which he nevertheless — 1, cannot obtain singly ; 2, ought not to obtain singly, (because he exposes himself or his fellow-citizens by doing so, to great danger, for instance, by redressing privately interferences with his rights ;) 3, will not do singly, (because burthensome, disagreecMet &c., e. g. to keep roads in good order, establish common schools, pay what we owe.) Thus, life is absolutely necessary for man ; and if he cannot possibly obtain medical assistance, society," meaning thereby the State, " is bound to furnish it." Lieher's Manual of Political Ethics, p. 183. His theory is, that the State is society organized on, and according to, its jural relations, that is, relations of right ; and with him the term, right, has a very wide meaning, being apparently synonymous with wJiatever is essential to the well-being of man.

tion between one thing and another, it will appear, that there are various forms of human association, some of them larger, some more limited than the particular form of poUtical society, but each of them independent upon it and upon any other, relating to a separate subject-matter, and having a separate end or object ; and that although all of them are connected with and aflFect each other, because all of them respect the same being — namely Man, yet there is truly no better reason for saying, that they are subordinate to, or spring out of poUtical society, than for saying that it is subordinate to, or springs out of them. My meaning will appear when I instance, firsts the great society of the Human Race, of which every man is a member, and as such, is bound by many obligations, and clothed with many rights ; next^ the religious or ethical society, that is, the Church ; and lastly^ the domestic society, or the Family, not to mention a variety of minor and more transitory unions. To the eye of reason there is surely discernible a basis for each of these, distinct from the political institute. And as a sound historical knowledge teaches us to deny that political society was, in point of fact, the first form of the social condition, and the producer of all other forms, so does a sound philosophy instruct us, that the political has no claim to take railk in morals as the creative and germinative principle of Society ; but, on the contrary, that the various social unions just mentioned, result as directly from, and rest as immediately as the State itself does, upon the basis of all society, which is the sociable constitution of man. It may be that apart from the State, those other associations would be but