life and property; that is, for their rights. But if men could have continued in the associated state only because on the average it insured their rights better than the previous one, then the insurance of their rights becomes the special duty which society in its corporate capacity has to perform towards individuals. That function by which a thing begins to exist we may safely consider its all-essential function. Now, whilst those majiy aids to gratification which civilization has brought us were yet undeveloped, society must have existed only because it protected its members in the pursuit of those things which afford satisfaction to the faculties. But to protect men in the 254 THE DUTY OF THE STATE.
pursuit of those things -which afford satisfaction to the facylties is to maintain their rights. And if it was by maintaining the rights of its members that society began to be, then to maintain their rights must ever be regarded as its primary duty.
Further confirmation may be drawn from the universal practice of mankind in this matter. Widely as people have differed respecting the proper bounds of legislative superin- tendence, all have held them to include the defence of the sub- ject against aggression. Whilst, in various countries and times, a hundred different functions have been assigned to the state — whilst there have probably been no two governments that have entirely agreed in the number and nature of their functions — whilst the things specially attended to by some have been wholly neglected by others, and thereby proved non-essential, there is one office — that of protector — which has been common to them all. Did this fact stand alone it might bv a stretch of incredulity be construed into an accident But coinciding as it does -with the foregoing inferences drawn from the nature of man's constitution and the necessary origin of society, we may safely take it as a further evidence that the duty of the state is — to protect — to enforce the law of equal freedom; to maintain men's rights, or, as we commonly express it— to administer justice.
The question — What is the thing to be done by a govern- ment? being answered, there arises the other — Which is the most efficient mode of doing it? To the proposition— the ad- ministration of justice is the special duty of the state, there hangs the corollary— the state ought to employ the best methods of fuliilhng that duty; and this brings us to the inquiry — "What are they?
By our hypothesis the connection of each individual with the community as poUtically organized, must be voluntary. In virtue of its very office an institution which proposes to guarantee a man's freedom to exercise his faculties, can onlv THE DUTY OF THE STATE. 255 tender its services to liim; cannot coerce him into the accept- ance of them. If it does it becomes self-contradicting — vio- lates that very freedom which it proposes to maintain. Citi- zenship then being -willingly assumed, we must inquire what agreement is thereby tacitly entered into between the state and its members. Two things are conceivable. There may either be an understanding that whoever applies to the judicial power for assistance shall defray the costs thereupon incurred by it on his behalf, or it may be provided that the payment of a constant contribution towards the expenses of this judicial power shall entitle the contributor to its services whenever he needs them. The first of these arrangements does not seem altogether practicable; the other is one to wliich existing sys- tems partially assimilate. In either case, however, it is taken for gi'anted that the parties will duly fulfil their promises; that equivalents of protection and taxation shall be exchanged; that, on the one side, if the individual chooses to avail liimself of state guardianship, he shall not refuse his fair share of state burdens; and on the other, that when the state has imposed the burdens it shall not withhold the guardiansliip.
Self-evident as is this interpretation of the agreement, which citizenship presupposes, judicial practice is but little guided by it. Our system of jurisprudence takes a very one-sided view of the matter. It is indeed stringent enougli in enforc- ing the claim of the state against the subject; but as to the reciprocal claim of the subject against the state it is compara- tively careless. That it recognises the title of the tax-payer to protection is true; but it is also true that it does this but partially. From certain infringements of rights, arbitrarily classed as criminal, it is ready to defend every complainant; but against others, not so classed, it leaves every one to defend himself The most trifling injury, if inflicted in a specified manner, is cognizable by the magistrate, and redress may be obtained free of charge; but if othei-wise inflicted, the injury, no matter how serious, must be passively borne, unless the suf- ferer has plenty of money and a sufficiency of daring. Let a 256 THE DUTY OF THE STATE.
man have his hat knocked over his eyes, and the law will zealously espouse his cause — will mulct his assailant in a fine and costs, and will do this without charge. But if, instead of having been bonneted, he has been wrongfully imprisoned, he is politely referred to a solicitor, with the information that the offence committed against him is actionable: which means, that if rich he may play double or quits with Fate; and that if poor he must go without even this chance of compensation. Against picking of pockets, as ordinarily practised, the ruhng power grants its lieges gratuitous protection; but pockets may be picked in various indirect ways, and it will idly look on unless costly means are taken to interest it. It will rush to the de- fence of one who has been deprived of a few turnips by a half- starved tramp; but as to the estate on which these tur- nips grew, that may be stolen without risk, so long as the despoiled owner is left friendless and penny less'. Some com- plaints need only to be whispered, and it forthwith plays the parts of constable, lawyer, judge, and gaoler; whilst to others it turns a deaf ear unless they are made through its bribed hangers-on. Now it is the injured man's champion; and now it throws down its weapons to sit as umpire, whilst oppressor and oppressed run a tilt at each other- Over such and such portions of a citizen's rights it mounts guard and cries — " Wlio goes there? " to every intruder; but upon the rest any one may trample without fear of being challenged by it.
To a man with perceptions unblunted by custom, this mode of carrying out the agreement subsisting between himself and the state, would seem strange enough. It is not impossible that he might call the transaction a swindle; might argue that his property had been taken ii-om him under false pretences. " To what purpose," he might ask, " did I submit myself to your laws, if I am now to be denied the advantages promised in ^ It is trne that a plaintiff who can swear that he is not worth £5 may sue in forma paupei-is. But this privilege is almost a dead letter. Actions sn instituted are usually found to fail, because those who conduct them, having to plead gratuitously, plead carelessly.
THE DUTY OF THE STATE. 257 Tetum? Have I not complied with all the stipulations? You demanded allegiance, and I gave it. You said money was needful, ajid I paid the uttermost farthing of your exactions, heavy as they were. You required me to fulfil certain civil functions, and I fulfilled them cheerfully. Yet now when I ask you to give me that for which I made these sacrifices, you shuffle. I supposed you were to act the part of an Argus- eyed and Briareus- armed guardian, ever watching over my in- terests, ever ready to step in and defend them; so that -whether sleeping or waking, absorbed in business or immersed in plea- sure, I might have the gratifying consciousness of being care- fully shielded from injury. Now, however, I find, not only that my rights may be trespassed upon in many ways without attracting your notice, but that even when I tell you I have been wronged, and demand your interposition, you shut the door in my face, and will not hsten until I have exorbitantly feed some of the servants who have access to your private ear. What am I to understand by this? Is it that your revenue is insufficient to defray the cost of dispensing justice in all cases? If so, why not say as much, and let us increase it? Is it that you cannot accomphsh what you profess? If so, declare candidly what you are able to do, and what not. But at any rate let us have some inteUigible understanding, and not this jumble of contradictions — this conflict of promise and performance — this taking of the pay without doing the duty."
That men should sit down so a,pathetically as they do under the present corrupt administration of justice, is not a little re- markable. That we, with aU our jealousy of abuses; with all our opportunities of canvassing, blaming, and amending the acts of the. legislature; vnth all our readiness to organize and a^tate; with the Anti-Com-Law, Slavery- Abohtion, and CathoUc-Emancipation victories fresh in remembrance; that we, the independent, determined, self-niUng Enghsh, should 258 THE DUTY OF THE STATE.
daily behold the giant abominations of our judicial system, and yet do nothing to rectify them, is really quite incomprehen- sible. It is not as though the facts were disputed; all men are agreed upon them. The dangers of law are proverbial. The names of its officers are used as synonymes for trickery and greediness. The decisions of its courts are typical of chance. In all companies you hear but one opinion, and each person confirms it by a fresh illustration. Now you are in- formed of d£300 having been expended in the recovery of forty shiUings' worth of property; and again of a cause that was lost because an affirmation could not be received in place of an oath. A right-hand neighbour can teU you of a judge who allowed an indictment to be objected to, on the plea that the words, "in the year of our Lord," were not inserted before the date; and another to your left narrates how a thief lately tried for steahng a guinea-pig was acquitted, because a guinea- pig was shown to be a kind of rat, and a rat could not be property. At one moment the story is of a poor man whose rich enemy has deUberately ruined him by tempting him into htigation; and at the next it is of a child who has been kept in prison for six weeks, in default of sureties for her appearance as witness against one who had assaulted her^. This gentleman has been cheated out of half his property, but dared not attempt to recover it for fear of losing more; whilst his less prudent companion can parallel the experience of him who said that he had only twice been on the verge of ruin; once when he had lost a law-suit, and once when he had gained one. On all sides you are told of trickery and oppres- sion, and revenge, committed in the name of justice; of wrongs endured for want of money wherewith to purchase redress; oi rights unclaimed because contention with the powerful usurper was useless; of chancery-suits that outlasted the lives of the smtors; of fortunes swallowed up in settUng a title; of estates lost by an informality. And then comes a catalogue of vie- The case occurred at Winchester in July, 1849.
THE DUTY OF THE STATE. 259 tims — of those who have trusted and been deceived; gray- headed men whose hardly-earned savings went to fatten the attorney; threadbare and hollow-cheeked insolvents who lost all in the attempt to get their due; some who had been re- duced to subsist on the charity of friends; others who had died the death of a pauper; with not a few whose anxieties had produced insanity, or who in their desperation had com- mitted suicide. Yet, whilst all parties echo each others' excla- mations of disgust, these iniquities continue unchecked!
There are not wanting, however, men who defend this state of things — who actually argue that government should perform but imperfectly what they allow to be its special function. Whilst, on the one hand, they admit that administration of jus- tice is the vital necessity of civihzed Ufe, they maintain, on the other, that justice may be administered too well! " For," say they, "were law cheap, aU men would avail themselves of it. Did there exist no difficulty in obtaining justice, justice would be demanded in every case of violated rights. Ten times as many appeals would be made to the authorities as now. Men would rush into legal proceedings on the sUghtest provocation; and litigation would be so enormously increased as to make the remedy worse than the disease."
Such is the arg^ument; an arg^ument involving either a gross absurdity or an unwarrantable assumption. For obsei^ve: when this great multiplication of law proceedings under a gratuitous administration of justice is urged as a reason why things should remain as they are, it is implied that the evils attendant upon the rectification of all wrongs, would be greater than are the evils attendant upon submission to those wrongs. Either the great majority of civil aggressions must be home in silence as now, or must be adjudicated upon as then; and the allegation is that the first alternative is preferable. But if ten thousand litigations are worse than ten thousand injus- 260 THE DUTY OF THE STATE.
tices, then one litigation is worse than one injustice. ^Vhich means that, as a general princiiDle, an appeal to the law for protection is a greater evil than the trespass complained of. Which means that it would he hetter to have no administration of justice at all! If for the sake of escaping this absurdity it be assumed that, as things now are, all great wrongs are rectified, — that the costhness of law prevents insignificant ones only from being brought into court, and that consequently the above inference cannot be drawn, — then, either denial is given to the obvious fact that, by the poverty they inflict, many of the greatest wrongs incapacitate their victims from obtaining re- dress, and to the obvious fact that the civil injuries suffered by the masses, though absolutely small, are relatively great; or else it is taken for granted that on nine-tenths of the popu- lation, who are too poor to institute legal proceedings, no civil injuries of moment are ever inflicted!
Nor is this all. It is not necessarily true that making the law easy of access would increase litigation. An opposite effect might be produced. The prophecy is vitiated by that very common mistake of calculating the, result of some new arrangement on the assumption that all other things would remain as they are. It is taken for granted that under the hypothetical regime just as many transgressions would occur as at present. Whereas any candid observer can see that most of the civil offences now committed, are committed in conse- quence of the inefficiency of om- judicial system; " For sparing justice feeds iniquity."
It is the difficulty that he knows there will be in convicting him which tempts the knave to behave knavislily. Were not the law so expensive and so uncertain, dishonest traders would never risk tlie many violations of it they now do. The tres- passes of the wealthy against tlie poor would be rare, were it not that the aggrieved have practically no remedy. Mark how, to the man who contemplates wronging his fellow, our legal system holds out promises of impunity. Should his proposed THE DUTY OF THE STATE. 261 victim be one of small means, there is the likehhood that he will not be able to carry on a law-suit: here is encouragement. Should he possess enough money, why, even then, having, like most people, a great dread of Utigation, he will probably bear his loss unresistingly: here is further encouragement. Lastly, our plotter remembers that, should his victim venture an action, judicial decisions are very much matters of accident, and that the guilty are often rescued by clever counsel: here is still more encouragement. And so, all things considered, he de- termines to chance it. Now, he would never decide thus were legal protection efficient. Were the administration of law prompt, gratuitous, and certain, those probabilities and possi- bilities which now beckon him on to fraudulent acts would vanish. Civil injiuries wittingly committed would almost cease. Only in cases where both parties sincerely believed themselves right, would judicial arbitration be caUed for; and the number of such cases is comparatively small. Litigation, therefore, so far from inco'easing on justice being made easy of obtain- ment, would probably decrease.
But, after aU, it is not the setting up of this or that system of jurisprudence which causes the intercourse of men with eacli other to be equitable or otherwise. The matter Ues deeper. As with forms of government, so with forms of law; it is the national character that decides. The power of an apparatus primarily depends, not on the ingenuity of its design, but on the strength of its materials. Be his plan never so well de- vised— his arrangement of struts, and ties, and bolts, never so good — his balance of forces never so perfect — yet if our engineer has not considered whether the respective parts of his structure will bear the strain to be put upon them, we must call him a bungler. Similarly with the institution-maker. If the people with whom he has to deal are not of the requisite quahty, no cleverness in his contrivance wiU avail anything. Let us never 262 THK DUTY OF THE STATE.
forget that institutions are made of men; that men are the struts, ties, and bolts, out of which they are framed; and that, dovetail and brace them together as we may, it is their nature which must finally determine whether the institutions can stand. Always there will be some line of least resistance, along which, if the humanity they are wrought out of be not strong enough, they will give way; and having given way, will sink down into a less trying attitude. Thus it is, amongst other things, with judicial mechanisms. No matter how admirably devised, their results will be good only in proportion as the nation is good. The instrumentalities by which they are to act — -judges, juries, constables, witnesses, gaolers, and the rest — must be units of the people — will, on the average, be marked by the same imper- fections as the people; and though the system they are set to work out be perfect, yet wiU the badness of their characters degrade its acts down to a level with the general conduct of society.
That justice can be well administered only in proportion as men become just, is a fact too generally overlooked. "If they had but trial by jury! " says some one, moralizing on the Rus- sians. But they can't have it. It could not exist amongst them. Even if established it would not work. They lack that substratum of honesty and truthfulness on wliich alone it can stand. To be of use, this, like any other institution, must be bom of the popular character. It is not trial by jury tliat produces justice, but it is the sentiment of justice that pro- duces trial by jury, as the organ through which it is to act; and the organ wiU be inert unless the sentiment is there. These social forms which we regard as so potential, are things of quite secondary importance. What mattered it that the Roman plebeians were endowed with certain privileges, when the patricians prevented them from exercising those privileges by ill-treatment carried even to the death? What mattered it that oui- statute-book contained equitable provisions, and that officei-s were appointed to enforce them, when there needed a Magna Charta to demand that justice should neither be sold, THE DUTY OF THE STATE. 263 denied, nor delayed? What matters it even now, that all men are declared equal hefore the law, when magistrates are swayed by class sympathies, and treat a gentleman more leniently than an artizan? If we think that we can rectify the relationships of men at will, we deceive ourselves. What Sir James Mackin- tosh says of constitutions — that they are not made, but grow, applies to all social arrangements. It is not true that once upon a time men said — " Let there be law "; and there was law. Administration of justice was originally impracticable, Utopian; and has become more and more practicable only as men have become less savage. The old system of settling disputes by personal contest, and the new system of settling them by state arbitration, have coexisted throughout all ages; the one httle by little usurping the place of the other, outgrowing it. It was only after some advance had been made that the civil power could get recognised at all as a maintainer of rights. The feudal baron with castle and retainers maintained his own rights, and would have considered himself disgraced by asking legal aid. Even after he had agreed to regard his suzerain as umpire, it was still in the Hsts, and by the strength of his arm and his lance, that he made good his cause. And when we remember that equally amongst lords and labourers this prac- tice lingers even now — that we have stiU duels, which it is thought dishonourable for a gentleman to avoid by applying to a magistrate — that we have still pugilistic fights, which the people try to hide from the poUce — we are taught that it is impossible for a judicial system to become efficient faster than men become good. It is only after public morality has gained a certain ascendancy, that the civil power gets strong enough to perform its simplest functions. Before this it cannot even put down banditti; border forays continue in spite of it; and it is bearded in its very strongholds, as, amongst ourselves, by the thieves of Whitefriars but two centuries ago. Under early governments the officers of law are less friends than ene- mies. Legal forms are habitually used for purposes of oppres- sion. Causes are decided by favouritism, bribery, and back- 264 THE DUTY OF THE STATE.
Stairs intrigue. The judicial apparatus breaks down under the work it has to do, and shows us in a Jonathan Wild, a Judge Jeffries, and even a Lord Chancellor Bacon, how inevitably its several parts are rendered inoperative by a generally-diffused wickedness.
Of course the efficiency of present and future systems of jurisprudence must be determined by the same influences. Of our own legal arrangements we may say, what Emerson has well said of institutions generally — that they are about as good as the characters of men permit them to be. When we read of Orange magistrates who become aggressors rather than protectors; of policemen who conspire with each other to obtain convictions that they may be promoted; and of the late Palace Court, whose officers habitually favoured the plaintiff with the view of inducing men to enter suits there, we find that now, as of old, judicial protection is vitiated by the depravity of the age. Nevertheless it is probable that we are ripe for something better than we have. The universal disgust with which law is regarded, may be taken as evidence of this — as evidence, moreover, that a change is at hand. But it is not likely that the mode of administering justice lately pointed out as the proper one is immediately feasible; seeing that men, by not having yet even recognised it as theoretically right, show themselves considerably below the state to which it is natural. This, however, is no reason for not advocating its adoption. For, what was said in the last chapter respecting an equitable form of government, may be here said respecting an equitable system of law; that the power quietly to establish it is the measure of its practicability.
By dispersing that haze of political superstition through which the state and its appendages loom so large, the fore- going considerations suggest a somewhat starthng question. For if when men's savageness and dishonesty render the ad- THE DUTY OF THE STATE. 265 ministration of justice most necessary, it is impossible; if it becomes possible only in proportion as men themselves become just; and if that same universal uprightness, which permits the administration of justice to become perfect, also makes it needless, as it evidently must, then we may naturally ask — Can the state really administer justice at all? Does it, looking at society as a whole, secure to the people any fuller enjoyment of their rights than they would have without it? May we not conclude that it takes away from men's liberties in one direc- tion, as much as it gives in another? Is it not a mere dead mechanism worked by a nation's moral sense; neither adding to, nor deducting from, the force of that moral sense; and con- sequently unable to alter the sum-total of its effects?
A strange idea, this, some wiU think; and so at first sight it seems. We have such a habit of regarding government in its protective character, and forgetting its aggressive one, that to ask whether the rights it secures are not about balanced by the rights it violates, seems almost laughable. Nevertheless we shall find that on drawing up a debtor and creditor account, the absurdity of the doubt disappears. Passing over those ruling powers of the East, which, in return for the small amount of security they guarantee, are in the habit of confiscating, under one pretence or other, any property not efficiently con- cealed by the unfortunate owners, and which, in some cases, push their exactions so far as to have to give back for seed in the spring a part of that crop they had taken from the husband- man at the previous harvest — passing over, too, those middle-age systems of government under which protection, such as it was, had to be purchased by the resignation of personal freedom, let us institute as favourable a comparison as possible. Let us take the relatively good governments we now know, and setting down on the one side the benefits conferred, and on the other the evils inflicted, let us strike a balance between them. Under