# Encyclopædia Britannica, Ninth Edition/Government/II. Sphere of Government.

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II. Sphere of Government.
We may now ask, What is the appropriate sphere of government ? What kind of business does it undertake, and what kind of business ought it to undertake 1 ? By what limits is its action to be restricted? Here too the field is occupied by disputed theories and diversified practice. And the sphere assigned to state action in different ages and countries varies as widely as the form of government. The action of the state, or sovereign power, or govern ment in a civilized community shapes itself into the three fold 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 dif ferent 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. It is only recently that the important subject of divorce passed from the legislative chambers to the courts of law. In some of the States of the American Union the judicial functions of the upper house are still maintained after the example of the English constitution as it existed when these States were founded. In England there is also still a consider able ainount 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 quali fication. 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 tra ditional 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. There is not the smallest sign that de mocratic opinion in England is tending in this direction. 1 At the same time the constitution of the United States has assigned to the supreme court of the Union a perfectly unique position, standing in singular contrast to the de praved condition of many of the State judicatories. The supreme court is the guardian of the constitution. 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.
1 It is worth noting that direct election to offices supposed to be characteristic of the democratic spirit has no place in English political ideas. The few instances in which it occurs are regarded with indifference. The election of the coroner by the freeholders is universally condemned. In the few parishes where the clergyman may be appointed by the parishioners, the right is often left to be exercised by the bishop. ​ 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 miy 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 out- cone 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 cxn be and ought to be limited belongs to the times of " government by discussion," to use Mr Bagehot s expres sion, to ths 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 miking 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. Ths 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 themost state-ridlen nations of modern times would agree in repudiating.
Importance of this Question in English Politics.—Limitation, then, being a principle known only to free governments, we naturally look to English political history for its elucidation ; and the speculative and practical treat ment of this question is perhaps the most valuable contri bution made by England to political science. From the time of the Involution, the principle that there is a limit to the permissible action of government has been tacitly admitted. The theories which restricted the powers of the constitutional king by founding them on popular consent tended also to the restriction of the sphere of government in general. The connexion between the two may be seen very clearly in Locke. Government was created by the voluntary union of men in political society, and the object for which they agreed to unite was the preservation of their property. The scope of government is therefore limited by this its original object. " Though men, when they enter into society, give up the liberty, equality, and executive power they had in the state of nature into the hands of society, to be so far disposed of by the legislature as the good of society shall require, yet, it being only with an intention in every one the better to preserve himself, his liberty, and property, ... the power of the society or legis lature constituted by them can never be supposed to extend further than the common good." The practical application of these principles is to be found in his essay on Toleration. The business of the state being the protection of body and goods, it has no right to interfere with the religious worship or opinions of its citizens. The existence of religious dis sent on a large scale kept up the practical importance of this theory. Even in the extreme absolutism of the parti sans of monarchy, the curious doctrine of passive obedience recognizes the same principle. Although the will of the sovereign ought never to be resisted, there is a line of action beyond which he ought never to pass. Another historical fact of some importance is the long- continued alienation of the aristocratic classes from the reigning family during the post-Revolution period. In the 18th century the natural champions of monarchical power were in opposition. Their vast local influence, which might otherwise have gone to aggrandize the influence of the crown, was really employed to thwart it. There thus sprang up in the most conservative classes of society a strong feeling of jealousy for local independence, and a standing dislike of Government interference. Squire Western, in Tom Jones, may be taken as the type of the country party of the period. His idea of intellectual conversation is abusing the Govern ment over a bottle. Nothing in the new-fangled notions of his sister disgusts him more than her affected sympathy with the politicians then in power. The sullen disaffection of the most powerful section of society was a most effectual bulwark against any extension of the central power. It has been remarked by an acute observer 1 that the weakness of government in the 18th century suffered even public insti tutions to assert their local independence. Corporations of every kind enjoyed the most complete liberty of action, and, freed from state control, became the private patrimony of their members. The same sort of resistance to state action has been repeated in the 10th century. The natural adherents of the crown, and the leaders of provincial society, the aristocracy, the county gentry, and the clergy, have g3nerally been in opposition to ministers. It is a fact not without significance that the first constitutional question of this reign was raised by Sir Robert Peel, the leader of the Conservative party. Again, the exhaustive discussion of all political measures, which for 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."
State and Church.—The side on which the legitimate province of government has been most debated is that on which it comes in contact with religion. High eccle siastical theories draw the lines of restriction as clearly as voluntaryism, but what they exclude is state control and not state support. The Roman Catholics, the High Church party in England, and the Free Church in Scot land, all unite in protesting against the intrusion of the secular government into spiritual affairs. This assertion of a spiritual domain lying beyond the sphere of govern ment, and sacred from its interference, unfortunately implies that there is another authority from which, on religious matters, the Government ought to take its instructions. The duty of a national recognition of religion implying com pulsion of the most personal character is strongly asserted by the very persons who denounce state control as illegiti mate and tyrannical. The exclusion of the state from the spiritual domain is, in fact, not founded on any reasoned theory of the functions of government at all, but on the belief in a divinely appointed order for spiritual things, which it is the duty of the state to enforce. An attempt to base this position on general principles has, indeed, been made by Mr Gladstone in his work on Church and State. Holding that the state is a moral person, he argues that its
1 Mr Mark Pattison in Essays and Reviews. ​action must be regulated by conscience, and that its religious obligations are the same as those of the individual man. It must therefore recognize and practise a religion, and the true religion is that of the Christian Church, of which the English Establishment is a branch. That religion, with its divinely organized system of Episcopacy, the state should enforce in every way short of physical persecution. It should exclude heretics from office and privilege, but it should not put them in prison. Mr Gladstone s book was the occasion of a controversy which doubtless had some effect on sub sequent political events. Macaulay 1 stated the Whig view of the subject holding that while the state may justi fiably endow an established church, it may not persecute for dissent in any way whatever. Government has princi pally to deal with the material wants of society, and with the protection of life and property. While this is the main end of government, it may pursue such secondary ends as the promotion of education and religion, the encouragment of arts, &c., but the primary end must not be sacrificed to the secondary end. The state is therefore not a moral person at all, any more than a mil way company or a hospital ; and government is certainly not an institution for the pro motion of religion ; but, if it finds it expedient, it may justly support Presbyterianism in Scotland, Protestant Episcopacy in England, and Roman Catholicism in Ireland. It is needless to say that Macaulay makes no attempt to define the limits within which the government may thus provide for the good of society. These may be said to have been the views of Liberal politicians and latitudinarian church men. On the other hand, the religious theory of govern ment, as expounded in Dr Arnold s Oxford Lectures on History, is based on the conception that the ideal church and state are one. Here there can be no bounds to the legitimate action of the state except its conformity with religious truth. And Dr Arnold does not hesitate to fore- cist an ideal state of society in which disbelief in the Christian religion shall so outrage the moral sense of the community that it may fittingly be put down by the strong arm of the law. The weakness of all theological specula tions about government is that they are fitted only for local use. The theory of government cannot well be discussed to much purpose with a disputant who requires a series of theological propositions to be taken for granted.
The Laissez-faire Theory.—Mill.—A more profitable line of inquiry has been followed by writers of the economical school. The most important of these is John Stuart Mill, V7hose essay on Liberty, together with the concluding chapters of his treatise on Political Economy, gives a tolerably complete view of the principles of government. The leaning of political economists is towards what is called the laissez-faire or non-interference doctrine. There is a general presumption against the interference of Govern ment, 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 Govern ment are so burdensome, that to increase them destroys its efficiency. Its powers are already so great that indi vidual freedom is constantly in danger. As a general rule, nothing which can be done by the voluntary agency of individual? 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 Mr 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. Mr Mill even goes so far as to
1 Critical and Historical Essays, vol. i.
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, Mr 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, Mr 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.
Herbert Spencer.—The most thoroughgoing opponent of state action, however, is Mr 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 funda mental 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 estab lishments, 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. Many of the principles enunciated in this book are not reconcilable with the later views of the author, but he would still appear to maintain his theory of government to the fullest extent. Thus, in the Principles of Sociology, published in 1877, he distinguishes between the militant type of society and the industrial type. The former is framed on the principle of compulsory co-operation, while the latter is framed on the principle of voluntary co-operation. He vaguely indicates " a possible future social type, differing as much from the industrial as this does from the militant, a type which, having a sustaining system more fully developed than any one known at present, will use the products of industry neither for maintaining a militant organization nor ex clusively for material aggrandizement, but will devote them to the carrying on of higher activities." Of the two actually existing types, the militant is distinguished by a strong and the industrial by a feeble Governmental system. Reversing the analogy suggested by individual organisms, he holds the latter to be a higher and better type than the former. 2 And he maintains that military activity in a state dis tinguished by a high degree of industrial development produces a recurrence to the militant type of institutions generally. Thus, in Germany, the dealings of Bismarck with the ecclesiastical powers, and the measures taken for
2 Principles of Sociology, vol. i., London, 1877. In a postscript to part ii. Mr Spencer explains the " origin of this seeming incongruity." Individual organisms, high or low, have to maintain their lives by offensive or defensive activities or both ; social organisms, except during the militant stage of their evolution, have not. ​centralizing the state control of railways, are instances of a more coercive regime established by war. In England, the peaceful period from 1815 to 1850 is contrasted with the militant period since 1850. The latter has been marked by the usurpations of military officialism, by sanitary dic tation, by coercive philanthropy, by compulsory education, by an unhesitating faith in state-judgment, and by a general disregard of the principles of free government, even on the side of the party which in the previous period effected changes in the direction of freedom.
Tendency of recent Legislation.—Turning from political theory to political practice, let us see how the legislation of the List fifty years in England has drawn the line between legitimate and illegitimate state action. The period that has elapsed since the passing of the Reform Act of 1832 has been one of great legislative activity. In no former period has legislation been so completely under the control of public opinion, or so directly affected by opsn discussion of the principles of projected measures. It will be of some interest, therefore, to inquire how the most enlightened political community in the world has, during the period of its fullest freedom, defined the business of government.
Reduction of State Action.—Religion.—The cases in which Government interference has been abolished or greatly limited during this period are mainly two in matters of opinion (especially roltgious opinion), and in matters of con tract. The principle that the state ought to maintain some form of religion has been surrendered by the disestablish ment of the Irish Church. The disqualifications, political and civil, of dissenters, have, with a very few and not very important exceptions, been removed. The last remnant of the old rule, making witnesses incompetent on religious grounds, was remove I by the Act enabling persons to give evidence without an oath. A few statutes making various forms of irreligion punishable still remain, but they are never enforced, and any attempt to enforce them would almost certainly end in their formal repeal. State prosecu tions for expression of opinion have almost entirely ceased, and practically the only instrument of control now left is the law of libel. Under the influence of the judges, that hw has, during the period in question, been uniformly interpreted in a sense favourable to the freedom of discus sion. One of the few remaining restrictions on religious freedom is the principle, acted on in several recent cases, that a contract may bs broken if its object is to facilitate the expression of irreligious opinions. 1 At the same time there appears to be a tendency to dis tinguish b3tween merely irreligious opinions and opinions pronounced to be immoral. Convictions have lately been obtained for publishing and selling books advocating opinions on certain moral and social questions which appeared to a jury to be calculated to deprave the morals of the people. But here again the distinction lias been authoritatively drawn between such views when presented in a scientific form, and adapted to a scientific audience, and the same views offered openly to the unscientific public. Untenable as such distinctions are, they manifest a ten dency on the part of the courts to confine the prosecution of opinion within the principle of the law against indecent publications. It may further be added that, with one not able exception, the Public Worship Regulation Act, the dealings of the state with the church have been confined within a very narrow compass. The endowment of new sees, for instance, although sanctioned by the state, is left to the voluntary contributions of the public.
Contract.—Freedom of contract, in general, has been greatly advanced by the success of the free-trade agitation in 1843, which was not so much a protest against state regula-
1 E.g., a contract to let a hall for a lecture advocating atheistic principles.
tion as a demand for a cheap supply of food. Since that time, the principle that the state should leave men to make what bargains they please, without attempting to encourage any particular industry or to favour any special class, has taken rank as a maxim of universal application. One class of contracts those between master and servant long remained an exception to the general rule. Breach of such contracts by the servant was treated as a criminal offence, and the combination of servants to obtain a rise of wages as a conspiracy. A series of statutes, the last of which was passed a few years ago, has abolished the criminal character of the breach of the contract of service, except in a few cases. The abolition of the laws against usury in 1857 is another instance ; the authorization of trading companies with limited liability is another. The last great legislative measure before parliament (the Criminal Code Bill of 1879) proposes to do away with the old offences of maintenance and champerty. Besides the classes regarded by law as under disability to contract (infants, lunatics, and married women), a few doubtful instances of protected persons might still be named. Thus expectant heirs are treated in the spirit of the old laws against usury. Seamen are not allowed to make a charge upon their wages. In certain employments specified in the Truck Act wages are not allowed to be paid otherwise than in coin. The principle of free trade is outraged in its own name by the legal rule which vitiates contracts made " in restraint of trade."
Increase of State Action.—The enumeration of new restrictive measures, and instances of increased state inter ference within the same period, would occupy a much more formidable list. A rough classification only will be here attempted. We shall take first, interference for the pro tection of definite classes of persons.
Education of Children.—This is perhaps the most con spicuous, as it is certainly the most beneficial and the least disputed, of the recent encroachments of the state. The progress of opinion and legislation on this subject has been singularly rapid. Beginning with Government grants in aid of education, strenuously resisted on grounds going to the very n,ot of the question of legitimate state interference, the system has now culminated in a net-work of state-supported and state-administered schools spread over the whole coun try. That the state should compel parents to educate their children would only be a slight departure, if any, from the general principle imposing duties on parents and disabilities on childrer. Under the present system the state not only compels the parent to educate, but itself provides, and in great measure pays for, the education. A generation of dis cussion has, however, drawn very distinctly the line beyond which this advance of state authority must not proceed. Compulsory state education is for children only, and may be justified by the general argument which justifies state protection to the helpless; it is elementary only; and it is secular only.
Regulation of the Labour of Children and Women.—The long series of Factory Acts is the best example of the steady and persistent advance of Government control in this direc tion. Here the line of protection is considerably advanced, but is again carefully drawn under male adults, although these of necessity share in the benefits of the protection in all employments where their work requires the co-operation of women and children. See FACTOEY ACTS.
Regulation of Dangerous Employments.—Of these the Mines Regulation Acts are perhaps the best example. Here the Government actually lays down the rules under which alone these employments are suffered to be carried on. Here the principle that adults are capable of looking after themselves is overruled by the dangerous character of the employment.
In all these cases the action of the state is defended on ​the ground that the persons protected are unable sufficiently to protect themselves; and the principle adopted is that of prevention instead of mere punishment for breach of duty. Hence an enormous army of inspectors is required for the work of control.
Another class of interferences is justified on the ground of public health, and these, in respect of the amount of state supervision required, stand next to the protective measures already enumerated. The common law of nuisance recog nizes the principle that any source of contagion or discom fort set up by an individual is an injury to those who may be affected by it, which they may call upon the state to suppress. The Sanitary Acts interpose the remedy at an earlier stage, and by the usual apparatus of Government inspectors and detectives. Tha largest measure on this subject is the Public Health Act, and the most extreme development of the principle is the lending of money by the Government to municipalities for the erection of healthy dwelling-houses for labourers. Personal freedom is more directly affected by measures like the Vaccination Act, for which, however, the double ground of the helplessness of t .is subjects and the prevention of danger amounting to nuisance may be taken. The least defensible of all tha mexsures of this class are those relating to the adulteration of various kinds of food. The fraudulent or negligent supply of food injurious to health is an injury which may be appropriately punished by awarding compensation to the parson injured, and inflicting punishment on the delinquent. But under the last Act (Sale of Food and Drugs Act, 1875) it is a criminal offence to sell goods of a quality not asked for, and the usual staff of analysts and inspectors is estab lished to facilitate detection. The mighty engine of Govern ment determines the exact percentage of water which the dairyman may put in his milk and the publican in his gin.
Next come the cases in which the Government either aids or itself undertakes works of public convenience. The state monopoly of the post-office is the most conspicuous example, and we have recently seen it extended by the acquisition of the telegraphs. Less directly the state has acquired control of the locomotive system, by granting compulsory powers of various sorts and a pirtial monopoly to railway companies, and by imposing certain regulations on them. This department of state activity has been greatly increased by the operations of the Public Works Loans Commission, which lends money to local bodies for such purposes as the erection of baths and wash-houses, improving rivers, harbours, and towns, building light houses and public libraries, and the like.
The assertion of state control over endowments is another marked feature of the period. Except in this way, Govern ment has not, in England at least, interfered with the higher sort of education to any great extent. But most of the endowed schools and the universities have been subjected tD inquiry, and remodelled according to what are under stood to be the demands of the age. Almost every kind of corporation has been revised in the same way, the most notable and scandalous exception being the numerous and wealthy corporations of the city of London. The history of these reforms reveals a perfectly clear rationale of the relations existing between an endowed institution and the state. All endowments are privileges created by the state in the way of exception to the universal rule of law against perpetuities the rule which limits the operation of dead men s wills, and makes each generation master of its exist ing resources. When the purposes of an institution cease to be useful, or its organization is seen to be defective, it is the right and duty of the state to withdraw the privilege altogether, cr continue it under new conditions. All endowments become, in virtue of this rule, the property of the state; and how it shall deal with them becomes a question of statesmanship, not of interference with private interests. Under the name of " vested interests," all existing rights of individuals are stringently preserved. These two correlative principles the right of the state to revise all endowments, and the obligation to respect vested interests in any such revision have ceased to be disputable in English politics.
A similar extension of state control is to be seen in the organization of the professions—i.e., persons licensed to practise particular arts. The church, like the army, is not, properly speaking, a profession, and its regulations belong to the same class as those of the army or the civil service. The true professions are the various grades of lawyers and medical men. They have an exclusive monopoly of the arts which they profess. The protection of this monopoly was long the only connexion between them and the Government. They were left to the management of self-governing societies or corporations. Within our own generation there has been, not only a marked increase of state control over the professions, but a marked tendency to extend it to occupations hitherto uncontrolled. The system of medical licentiation is year by year becoming more stringent and more centralized. A recent Act provides for the more efficient testing of the qualifications of solici tors. The bar, which has hitherto with immense practical wisdom governed itself by means of voluntary societies, is threatened with a parliamentary constitution, settling the conditions of admission, examination, discipline, and dis missal. The free professions are demanding the like recog nition and supervision by the state. A bill is now (1879) before parliament for organizing the professions of school masters in the higher class of schools ; and elementary schoolmasters are claiming to be included in its scope. The business of buying and selling stocks and shares has narrowly escaped, if it has escaped, the rules and regula tions of an act of parliament. A commission was actually appointed a few years ago to investigate the practices of brokers and jobbers, and one of its recommendations was that the Stock Exchange should forthwith become a cor poration. The last interference of this sort was the appointment of a committee of the House of Commons, at the instance of the London retail traders, to inquire into the working of what are called co-operative stores. Inquiry does not of course imply interference, and a committee or a commission is often a convenient way of stopping the mouths of agitators whom it might not be convenient to ignore altogether. Futile as the remedy may be, the first thought of every aggrieved class is to lay its wrongs before parliament.
Protection of things from Excessive Consumption.—Another class of interferences maybe described, in the most general terms, as measures taken for the protection of things which would otherwise perish, or greatly diminish, by reason of excessive use. Statutes of this sort have greatly multiplied during the last fifty years. There is hardly any kind of animal, which men think worth catching or eating, without its statutory close-time. The ostensible reason for this kind of legislation is that salmon, let us say, or oysters, are a very important article of food, and unless men are restrained from pursuing them to excess, the. whole breed would ultimately be extinguished, or so reduced in number as to be of little use. Another and less avowed reason is that animals of the protected order are necessary for the recreation of a certain class of gentlemen, who, in the interest of their own pleasures, must be restrained from carrying them to excess. Thus no gun must be lifted against grouse before the 12th of August, or against partridges before the 1st of September, so that next year there may still be grouse and partridges in the land. The great majority of these enactments belong in spirit to the ​game-laws, but many of them are genuinely intended for the perpetuation of perishable supplies of food. Some of them, like the Seabirds Protection Act, or the Small Birds Pro tection Act, are dictated by some sentimental fear of the extinction of such animals. As a whole, they are among the least defensible of the modern extensions of state power.
Coercion for Moral Purposes.—The measures hitherto noticed may in general be justified either on the ground of the inability of the persons protected to help them selves, or on the ground that some good to society as a whole, or to large portions of it, is secured thereby. An other class of measures openly aims at the moral im provement of the individuals affected by them, and in this class there has been an amazing and alarming increase. The laws against gaming are one of the best examples. At common law a wager was a contract, enforceable by the tribunals like any other. Not content with declining to enforce wagers, the state went further, and tried to put them down altogether. It made lotteries illegal. It visited with heavy penalties the keeping of betting-houses, all betting in public places, the publication of betting lists, &c. Games which lead to betting are put under the restraint of a licensing system, and in some parts of the provinces the state orders its citizens not to play billiards after eleven o clock at night. To this class belongs the severe code regulating what is called the liquor traffic. Through the agency of licensing magistrates, the state first of all limits the number of public-houses ; then it dictates directly the hours during which liquor maybe bought and sold; and in Scotland and Ireland it goes further, and prohibits altogether the sale of liquor on Sunday. A committee of the House of Lords has touched the highest point of government control ia proposing to empower local authorities to buy up all the public houses in their districts, and carry on the business for themselves. There is a simultaneously increasing tendency to interfere with people s amusements : fairs are being put down as immoral, music and dancing require licences very charily granted, the grip of the lord chamberlain over the London theatres is tightened, and so on. The course of moral legislation, in fact, threatens to sweep away every barrier to the encroachments of the state. The extended range of Government interference in other things has been accompanied, as we have seen, by a very distinct recog nition of limits, either in the rights of the individual con science, or in the capacity of adult manhood to manage its own affairs. But Acts of Parliament for improving the moral characters of men seem to recognize no limit at all. And it is a singular fact that, while this kind of legislation, under existing social arrangements, fails to affect the well- to-do classes, and presses chiefly on the comparatively poor, it is becoming more and more ideiitifie.d with the popular party in politics, and gathers strength with every addition to the popular element iu government.