Part 18

_The Relation between Government and Laws._--It might be supposed that, if any general proposition could be established about government, it would be one establishing some constant relation between the form of a government and the character of the laws which it enforces. The technical language of the English school of jurists is certainly of a kind to encourage such a supposition. The entire body of law in force in a country at any moment is regarded as existing solely by the fiat of the governing power. There is no maxim more entirely in the spirit of this jurisprudence than the following:--"The real legislator is not he by whom the law was first ordained, but he by whose will it continues to be law." The whole of the vast repertory of rules which make up the law of England--the rules of practice in the courts, the local customs of a county or a manor, the principles formulated by the sagacity of generations of judges, equally with the statutes for the year, are conceived of by the school of Austin as created by the will of the sovereign and the two Houses of Parliament, or so much of them as would now satisfy the definition of sovereignty. It would be out of place to examine here the difficulties which embarrass this definition, but the statement we have made carries on its face a demonstration of its own falsity in fact. There is probably no government in the world of which it could be said that it might change at will the substantive laws of the country and still remain a government. However well it may suit the purposes of analytical jurisprudence to define a law as a command set by sovereign to subject, we must not forget that this is only a definition, and that the assumption it rests upon is, to the student of society, anything but a universal fact. From his point of view the cause of a particular law is not one but many, and of the many the deliberate will of a legislator may not be one. Sir Henry Maine has illustrated this point by the case of the great tax-gathering empires of the east, in which the absolute master of millions of men never dreams of making anything in the nature of a law at all. This view is no doubt as strange to the English statesman as to the English jurist. The most conspicuous work of government in his view is that of parliamentary legislation. For a large portion of the year the attention of the whole people is bent on the operations of a body of men who are constantly engaged in making new laws. It is natural, therefore, to think of law as a factitious thing, made and unmade by the people who happen for the time being to constitute parliament. It is forgotten how small a proportion the laws actually devised by parliament are of the law actually prevailing in the land. No European country has undergone so many changes in the form of government as France. It is surprising how little effect these political revolutions have had on the body of French law. The change from empire to republic is not marked by greater legislative effects than the change from a Conservative to a Liberal ministry in England would be.

These reflections should make us cautious in accepting any general proposition about forms of government and the spirit of their laws. We must remember, also, that the classification of governments according to the numerical proportion between governors and governed supplies but a small basis for generalization. What parallel can be drawn between a small town, in which half the population are slaves, and every freeman has a direct voice in the government, and a great modern state, in which there is not a single slave, while freemen exercise their sovereign powers at long intervals, and through the action of delegates and representatives? Propositions as vague as those of Montesquieu may indeed be asserted with more or less plausibility. But to take any leading head of positive law, and to say that monarchies treat it in one way, aristocracies and democracies in another, is a different matter.

II. SPHERE OF GOVERNMENT

The action of the state, or sovereign power, or government in a civilized community shapes itself into the threefold functions of legislation, judicature and administration. The two first are perfectly well-defined, and the last includes all the kinds of state action not included in the other two. It is with reference to legislation and administration that the line of permissible state-action requires to be drawn. There is no doubt about the province of the judicature, and that function of government may therefore be dismissed with a very few observations.

The complete separation of the three functions marks a high point of social organization. In simple societies the same officers discharge all the duties which we divide between the legislator, the administrator and the judge. The acts themselves are not consciously recognized as being of different kinds. The evolution of all the parts of a highly complex government from one original is illustrated in a striking way by the history of English institutions. All the conspicuous parts of the modern government, however little they may resemble each other now, can be followed back without a break to their common origin. Parliament, the cabinet, the privy council, the courts of law, all carry us back to the same _nidus_ in the council of the feudal king.

_Judicature._--The business of judicature, requiring as it does the possession of a high degree of technical skill and knowledge, is generally entrusted by the sovereign body or people to a separate and independent class of functionaries. In England the appellate jurisdiction of the House of Lords still maintains in theory the connexion between the supreme legislative and the supreme judicial functions. In some states of the American Union certain judicial functions of the upper house were for a time maintained after the example of the English constitution as it existed when the states were founded. In England there is also still a considerable amount of judicial work in which the people takes its share. The inferior magistracies, except in populous places, are in the hands of private persons. And by the jury system the ascertainment of fact has been committed in very large measure to persons selected indiscriminately from the mass of the people, subject to a small property qualification. But the higher functions of the judicature are exercised by persons whom the law has jealously fenced off from external interference and control. The independence of the bench distinguishes the English system from every other. It was established in principle as a barrier against monarchical power, and hence has become one of the traditional ensigns of popular government. In many of the American states the spirit of democracy has demanded the subjection of the judiciary to popular control. The judges are elected directly by the people, and hold office for a short term, instead of being appointed, as in England, by the responsible executive, and removable only by a vote of the two Houses. At the same time the constitution of the United States has assigned to the supreme court of the Union a perfectly unique position. The supreme court is the guardian of the constitution (as are the state courts of the constitution of the states: see UNITED STATES). It has to judge whether a measure passed by the legislative powers is not void by reason of being unconstitutional, and it may therefore have to veto the deliberate resolutions of both Houses of Congress and the president. It is admitted that this singular experiment in government has been completely justified by its success.

_Limits of State Interference in Legislation and Administration._--The question of the limits of state action does not arise with reference to the judiciary. The enforcement of the laws is a duty which the sovereign power must of absolute necessity take upon itself. But to what conduct of the citizens the laws shall extend is the most perplexing of all political questions. The correlative question with regard to the executive would be what works of public convenience should the state undertake through its own servants. The whole question of the sphere of government may be stated in these two questions: What should the state do for its citizens? and How far should the state interfere with the action of its citizens? These questions are the direct outcome of modern popular government; they are equally unknown to the small democracies of ancient times and to despotic governments at all times. Accordingly ancient political philosophy, rich as it is in all kinds of suggestions, has very little to say that has any bearing on the sphere of government. The conception that the power of the state can be and ought to be limited belongs to the times of "government by discussion," to use Bagehot's expression,--to the time when the sovereign number is divided by class interests, and when the action of the majority has to be carried out in the face of strong minorities, capable of making themselves heard. Aristotle does indeed dwell on one aspect of the question. He would limit the action of the government in the sense of leaving as little as possible to the personal will of the governors, whether one or many. His maxim is that the law should reign. But that the sphere of law itself should be restricted, otherwise than by general principles of morality, is a consideration wholly foreign to ancient philosophy. The state is conceived as acting like a just man, and justice in the state is the same thing as justice in the individual. The Greek institutions which the philosophers are unanimous in commending are precisely those which the most state-ridden nations of modern times would agree in repudiating. The exhaustive discussion of all political measures, which for over two centuries has been a fixed habit of English public life, has of itself established the principle that there are assignable limits to the action of the state. Not that the limits ever have been assigned in terms, but popular sentiment has more or less vaguely fenced off departments of conduct as sacred from the interference of the law. Phrases like "the liberty of the subject," the "sanctity of private property," "an Englishman's house is his castle," "the rights of conscience," are the commonplaces of political discussion, and tell the state, "Thus far shalt thou go and no further."

The two contrasting policies are those of _laissez-faire_ (let alone) and Protection, or individualism and state-socialism, the one a policy of non-interference with the free play of social forces, the other of their regulation for the benefit of the community. The _laissez-faire_ theory was prominently upheld by John Stuart Mill, whose essay on _Liberty_, together with the concluding chapters of his treatise on _Political Economy_, gives a tolerably complete view of the principles of government. There is a general presumption against the interference of government, which is only to be overcome by very strong evidence of necessity. Governmental action is generally less effective than voluntary action. The necessary duties of government are so burdensome, that to increase them destroys its efficiency. Its powers are already so great that individual freedom is constantly in danger. As a general rule, nothing which can be done by the voluntary agency of individuals should be left to the state. Each man is the best judge of his own interests. But, on the other hand, when the thing itself is admitted to be useful or necessary, and it cannot be effected by voluntary agency, or when it is of such a nature that the consumer cannot be considered capable of judging of the quality supplied, then Mill would allow the state to interpose. Thus the education of children, and even of adults, would fairly come within the province of the state. Mill even goes so far as to admit that, where a restriction of the hours of labour, or the establishment of a periodical holiday, is proved to be beneficial to labourers as a class, but cannot be carried out voluntarily on account of the refusal of individuals to co-operate, government may justifiably compel them to co-operate. Still further, Mill would desire to see some control exercised by the government over the operations of those voluntary associations which, consisting of large numbers of shareholders, necessarily leave their affairs in the hands of one or a few persons. In short, Mill's general rule against state action admits of many important exceptions, founded on no principle less vague than that of public expediency. The essay on _Liberty_ is mainly concerned with freedom of individual character, and its arguments apply to control exercised, not only by the state, but by society in the form of public opinion. The leading principle is that of Humboldt, "the absolute and essential importance of human development in its richest diversity." Humboldt broadly excluded education, religion and morals from the action, direct and indirect, of the state. Mill, as we have seen, conceives education to be within the province of the state, but he would confine its action to compelling parents to educate their children.

The most thoroughgoing opponent of state action, however, is Herbert Spencer. In his _Social Statics_, published in 1850, he holds it to be the essential duty of government to _protect_--to maintain men's rights to life, to personal liberty and to property; and the theory that the government ought to undertake other offices besides that of protector he regards as an untenable theory. Each man has a right to the fullest exercise of all his faculties, compatible with the same right in others. This is the fundamental law of equal freedom, which it is the duty and the only duty of the state to enforce. If the state goes beyond this duty, it becomes, not a protector, but an aggressor. Thus all state regulations of commerce, all religious establishments, all government relief of the poor, all state systems of education and of sanitary superintendence, even the state currency and the post-office, stand condemned, not only as ineffective for their respective purposes, but as involving violations of man's natural liberty.

The tendency of modern legislation is more a question of political practice than of political theory. In some cases state interference has been abolished or greatly limited. These cases are mainly two--in matters of opinion (especially religious opinion), and in matters of contract.

The mere enumeration of the individual instances would occupy a formidable amount of space. The reader is referred to such articles as ENGLAND, CHURCH OF; ESTABLISHMENT; MARRIAGE; OATH; ROMAN CATHOLIC CHURCH, &c., and COMPANY; CONTRACT; PARTNERSHIP, &c. In other cases the state has interfered for the protection and assistance of definite classes of persons. For example, the education and protection of children (see CHILDREN, LAW RELATING TO; EDUCATION; TECHNICAL EDUCATION); the regulation of factory labour and dangerous employment (see LABOUR LEGISLATION); improved conditions of health (see ADULTERATION; HOUSING; PUBLIC HEALTH, LAW OF, &c.); coercion for moral purposes (see BET AND BETTING; CRIMINAL LAW; GAMING AND WAGERING; LIQUOR LAWS; LOTTERIES, &c.). Under numerous other headings in this work the evolution of existing forms of government is discussed; see also the bibliographical note to the article CONSTITUTION AND CONSTITUTIONAL LAW.

FOOTNOTES:

[1] Aristotle elsewhere speaks of the error of those who think that any one of the depraved forms is better than any other.

[2] None of the free states of Greece ever made extensive or permanent conquests; but the tribute sometimes paid by one state to another (as by the Aeginetans to the Athenians) was a manifest source of corruption. Compare the remarks of Hume (_Essays_, part i. 3, _That Politics may be reduced to a Science_), "free governments are the most ruinous and oppressive for their provinces."

[3] Ultimately, in the theory of English law, the king may be said to have become the universal successor of the people. Some of the peculiarities of the prerogative rights seem to be explainable only on this view, e.g. the curious distinction between wrecks come to land and wrecks still on water. The common right to wreckage was no doubt the origin of the prerogative right to the former. Every ancient common right has come to be a right of the crown or a right held of the crown by a vassal.

[4] See Bagehot's _English Constitution_; or, for a more recent analysis, Sidney Low's _Governance of England_.

[5] For an account of the double chamber system in the state legislatures see UNITED STATES: _Constitution and Government_, and also S. G. Fisher, _The Evolution of the Constitution_ (Philadelphia, 1897).

[6] A government "defeat" may, of course, not really represent a hostile vote in exceptional cases, and in some instances a government has obtained a reversal of the vote and has _not_ resigned.

GOVERNOR (from the Fr. _gouverneur_, from _gouverner_, O. Fr. _governer_, Lat. _gubernare_, to steer a ship, to direct, guide), in general, one who governs or exercises authority; specifically, an official appointed to govern a district, province, town, &c. In British colonies or dependencies the representative of the crown is termed a governor. Colonial governors are classed as governors-general, governors and lieutenant-governors, according to the status of the colony or group of colonies over which they preside. Their powers vary according to the position which they occupy. In all cases they represent the authority of the crown. In the United States (q.v.) the official at the head of every state government is called a governor.

GOW, NIEL (1727-1807), Scottish musician of humble parentage, famous as a violinist and player of reels, but more so for the part he played in preserving the old melodies of Scotland. His compositions, and those of his four sons, Nathaniel, the most famous (1763-1831), William (1751-1791), Andrew (1760-1803), and John (1764-1826), formed the "Gow Collection," comprising various volumes edited by Niel and his sons, a valuable repository of Scottish traditional airs. The most important of Niel's sons was Nathaniel, who is remembered as the author of the well-known "Caller Herrin," taken from the fishwives' cry, a tune to which words were afterwards written by Lady Nairne. Nathaniel's son, NIEL GOW junior (1795-1823), was the author of the famous songs "Flora Macdonald's Lament" and "Cam' ye by Athol."

GOWER, JOHN (d. 1408), English poet, died at an advanced age in 1408, so that he may be presumed to have been born about 1330. He belonged to a good Kentish family, but the suggestion of Sir Harris Nicolas that the poet is to be identified with a John Gower who was at one time possessed of the manor of Kentwell is open to serious objections. There is no evidence that he ever lived as a country gentleman, but he was undoubtedly possessed of some wealth, and we know that he was the owner of the manors of Feltwell in Suffolk and Moulton in Norfolk. In a document of 1382 he is called an "Esquier de Kent," and he was certainly not in holy orders. That he was acquainted with Chaucer we know, first because Chaucer in leaving England for Italy in 1378 appointed Gower and another to represent him in his absence, secondly because Chaucer addressed his _Troilus and Criseide_ to Gower and Strode (whom he addresses as "moral Gower" and "philosophical Strode") for criticism and correction, and thirdly because of the lines in the first edition of Gower's _Confessio amantis_, "And gret wel Chaucer whan ye mete," &c. There is no sufficient ground for the suggestion, based partly on the subsequent omission of these lines and partly on the humorous reference of Chaucer to Gower's _Confessio amantis_ in the introduction to the _Man of Law's Tale_, that the friendship was broken by a quarrel. From his Latin poem _Vox clamantis_ we know that he was deeply and painfully interested in the peasants' rising of 1381; and by the alterations which the author made in successive revisions of this work we can trace a gradually increasing sense of disappointment in the youthful king, whom he at first acquits of all responsibility for the state of the kingdom on account of his tender age. That he became personally known to the king we learn from his own statement in the first edition of the _Confessio amantis_, where he says that he met the king upon the river, was invited to enter the royal barge, and in the conversation which followed received the suggestion which led him to write his principal English poem. At the same time we know, especially from the later revisions of the _Confessio amantis_, that he was a great admirer of the king's brilliant cousin, Henry of Lancaster, afterwards Henry IV., whom he came eventually to regard as a possible saviour of society from the misgovernment of Richard II. We have a record that in 1393 he received a collar from his favourite political hero, and it is to be observed that the effigy upon Gower's tomb is wearing a collar of SS. with the swan badge which was used by Henry.

The first edition of the _Confessio amantis_ is dated 1390, and this contains, at least in some copies, a secondary dedication to the then earl of Derby. The later form, in which Henry became the sole object of the dedication, is of the year 1393. Gower's political opinions are still more strongly expressed in the _Cronica tripartita_.

In 1398 he was married to Agnes Groundolf, and from the special licence granted by the bishop of Winchester for the celebration of this marriage in John Gower's private oratory we gather that he was then living in lodgings assigned to him within the priory of St Mary Overy, and perhaps also that he was too infirm to be married in the parish church. It is probable that this was not his first marriage, for there are indications in his early French poem that he had a wife at the time when that was written. His will is dated the 15th of August 1408, and his death took place very soon after this. He had been blind for some years before his death. A magnificent tomb with a recumbent effigy was erected over his grave in the chapel of St John the Baptist within the church of the priory, now St Saviour's, Southwark, and this is still to be seen, though not quite in its original state or place. From the inscription on the tomb, as well as from other indications, it appears that he was a considerable benefactor of the priory and contributed largely to the rebuilding of the church.

The effigy on Gower's tomb rests its head upon a pile of three folio volumes entitled _Speculum meditantis_, _Vox clamantis_ and _Confessio amantis_. These are his three principal works. The first of these was long supposed to have perished, but a copy of it was discovered in the year 1895 under the title _Mirour de l'omme_. It is a French poem of about 30,000 lines in twelve-line stanzas, and under the form of an allegory of the human soul describes the seven deadly sins and their opposing virtues, and then the various estates of man and the vices incident to each, concluding with a narrative of the life of the Virgin Mary, and with praise of her as the means of reconciliation between God and man. The work is extremely tedious for the most part, but shows considerable command over the language and a great facility in metrical expression.