Studies in History and Jurisprudence, Vol. 2 E-Book

James Bryce

• Herausgeber: Jazzybee Verlag
• Kategorie: Fachliteratur
• Sprache: Englisch
• Veröffentlichungsjahr: 2017

Seitenzahl: 718

Beschreibung

This volume contains a collection of studies composed at different times over a long series of years. It treats of diverse topics: yet through many of them there runs a common thread, that of a comparison between the history and law of Rome and the history and law of England. The author has handled this comparison from several points of view, applying it in one essay to the growth of the Roman and British Empires, in another to the extension over the world of their respective legal systems, in another to their Constitutions, in others to their legislation, in another to an important branch of their private civil law. The topic is one profitable to a student of the history of either nation; and it has not been largely treated by any writers before Bryce, as indeed few historians touch upon the legal aspects of history. This is volume two out of two.

Leseprobe

Studies in History and Jurisprudence

Vol. 2

JAMES BRYCE

Studies in History 2, J. Bryce

Jazzybee Verlag Jürgen Beck

86450 Altenmünster, Loschberg 9

Deutschland

ISBN: 9783849650162

www.jazzybee-verlag.de

[email protected]

CONTENTS:

IX: OBEDIENCE.. 1

X: THE NATURE OF SOVEREIGNTY.. 26

XI: THE LAW OF NATURE.. 60

XII: THE METHODS OF LEGAL SCIENCE.. 90

XIII: THE RELATIONS OF LAW AND RELIGION.. 110

XIV: METHODS OF LAW-MAKING  IN ROME AND IN ENGLAND.. 130

XV: THE HISTORY OF LEGAL DEVELOPMENT  AT ROME AND IN ENGLAND   177

XVI: MARRIAGE AND DIVORCE  UNDER ROMAN AND ENGLISH LAW   200

XVII: INAUGURAL LECTURE248

XVIII: VALEDICTORY LECTURE.. 266

FOOTNOTES:280

IX: OBEDIENCE

The question which meets on the threshold of their inquiries all who have speculated on the nature of political society and the foundations of law is this: What is the force that brings and keeps men under governments? or, in other words, What is the ground of Obedience?

I.: Theories regarding Political Obedience.

The answers given by philosophers to this question, while varying in form, group themselves under two main heads. Some assign Fear as the ground, some Reason. One school discovers the power that binds men together as members of a State in Physical Force, acting upon them through the dread of death or other physical evil. The other conceives it to lie in a rational view of the common advantage, which induces men to consent of their own free-will to forgo some measure of their (supposed) original personal independence in order to obtain certain common benefits. Thus, while the former school finds the origin of law in Compulsion, the latter finds it in Agreement.

Both schools are of high antiquity, and have been represented by many eminent names. One gathers from Plato that divers sophists maintained the former thesis. It is in substance not far from that assigned to Thrasymachus in the Republic, where the Sophist says that Justice is nothing but the advantage of the stronger; and in later times Hobbes and Bentham are eminent among those who embrace it. The other view is most familiar to moderns from the writings of Rousseau; but it has a long and interesting history, intertwined with that of the notions of the State of Nature and the Law of Nature, and also with the history of the conception of Sovereignty—topics which are discussed elsewhere in this volume. Rousseau grounds obedience on the original ‘social contract,’ whereby each and every person agrees with every other to forgo his natural freedom by constituting a State which is to act for all, and in which the citizen recovers his freedom because he is himself a part of that ‘general will’ to which he renders a reasonable service. The Aristotelian doctrine that men are by their very constitution sociable creatures, naturally drawn to create and to live in communities, comes nearer to the second view, while escaping by its generality of expression the errors into which those who set political society upon the foundation of contract have frequently been betrayed. And it need not be added that many other philosophers in comparatively modern times, basing the State, some of them on the nature of man, some on eternal reason or the will of God, have held that it thereby acquires an absolute right to obedience from its members. These speculations, however, seldom touch the particular point I propose to discuss here, viz. the grounds which actually dispose men to obedience.

Of the two chief older theories, that which represents men as led by reason to enter into a Contract has of late fallen into discredit, being indeed so evidently opposed to what we know of the early state of mankind that it may be doubted whether most of those who propounded or have adopted it did not mean it to be taken rather as an apologue or mythical presentment of moral facts than as a piece of history. The theory of Force and Fear, on the other hand, has retained much of its vogue, having connected itself with a system of jurisprudential terminology which is, or lately was, influential in England and not unknown in America. According to Bentham and his followers, there is in every State a Sovereign who enjoys unlimited physical, and therefore also unlimited legal, power. His might makes his right. He rests on Force and rules by Fear. He has the sole right of issuing Commands. His Commands are Laws. They are enforced by Threats, and are obeyed in respect of the apprehension of physical harm to follow on disobedience. Whether those who adhere to this body of doctrine think it historically true as an account of the origin of law, or merely adopt it as a concise explanation and summary view of the principles on which modern law and highly developed forms of political society are based, is not always clear from the language they use. But the importance they attach to Force appears not only from the contempt they pour on the contractual theory of government, but also from their omission to refer to any facts in the character and habits of mankind except those which are connected with Force and Fear as factors in the development of the social organism.

A little reflection will, however, convince any one who comes to the question with an open mind that both these theories, that of compulsion as well as that of contract, are alike incomplete, and, because incomplete, are misleading. They err, as all systems are apt to err, not by pointing to a wholly false cause, but by extending the efficiency of a true cause far beyond its real scope. Rousseau is right in thinking that political society needs a moral justification, and that the principle of individual freedom is best satisfied where every one obtains a share in the government to which he submits. The Contractualists generally may find a solid basis for authority in the fact that organized society does actually render to each of its members some return for the so-called ‘natural liberty’ which he has surrendered. Even a bad government gives him at least a measure of protection, however imperfect, for his person and property against the attacks of any one but the government itself. Here there is, if not what we can call an implied contract, at least a consideration, a sort of mutuality of service in the political relation, for which each member gives something, and from which each gains something. To go further, and either to explain the growth of government by a conscious bargain at some past moment, or to conceive the idea of such a bargain as present to the bulk of those who live in any actual society now, or to regard the individual members of society as entitled to act upon contractual principles towards their government and one another, is to plunge at once into what are not more palpably historical errors than unworkable principles. So also the school of Thrasymachus and that which claims Hobbes as its founder are right in feeling that some test must be found of the solidity of a community and the actual working strength of its machinery; and they discover this in the fact that physical force is the ultima ratio wherewith to coerce the disturbers of the community and the transgressors of the law. Without force in the background, the law might be defied. It is when the men of this school, or some of them, go on to represent physical compulsion as the means by which communities have been in fact formed—though, to be sure, Hobbes himself alleges a contract as the very first step Ref. 002—and Fear as the motive which in fact secures respect to the law from the majority of the citizens, that they depart alike from history and from common sense. The problem of political cohesion and obedience is not so simple as either school of theorists would represent it.

To show that both schools are historically wrong would not be difficult. This has been often done as against such of the Contractualists as have held that conscious reason brought men out of the State of Nature by a compact; and if the historians who deal with the earlier stages of human progress have not cared to demolish the Physical Force doctrine, this may have happened because none has thought it worth while to refute a theory whose flimsiness they have perceived, but which they have deemed to lie outside the sphere of history. As it is the historian who best understands how much Force has done to build up States, so he most fully sees that Force is only one among many factors, and not the most important, in creating, moulding, expanding and knitting together political communities. It is not, however, necessary to institute any historical inquiry in order to reach this conclusion. An easier course is to interrogate one’s own consciousness, and to observe one’s fellow men. The problem of obedience to government and law is part of the larger and even more obvious problem of the grounds of Obedience in general. Why do we all forgo the gratification of many of our personal desires, desires in themselves harmless, merely because they are not shared by others? Why do we go on echoing opinions whose soundness we more than doubt? Why do we pursue pleasures which give us no amusement, but rather weariness? Why do we adhere to a party, political or ecclesiastical, of whose conduct we often disapprove? Why in fact is so large a part of our daily conduct determined, not by our own natural preferences, but by compliance with the opinion of others or submission to the social conditions that surround us?

 

II.: The Grounds of Obedience in General.

Political obedience is not a thing by itself, but a form of what may be called Compliance in general.

The grounds or motives of Compliance can be summed up under five heads. Putting them in the order of what seems to be their relative importance, they may be described as the following—Indolence, Deference, Sympathy, Fear, Reason. Let us consider each separately.

By Indolence I mean the disposition of a man to let some one else do for him what it would give him trouble to do for himself. There are of course certain persons to whom exertion, mental as well as physical, is pleasurable, and who delight in the effort of thinking out a problem and making a decision for themselves. There are also moments in the lives of most of us when under the influence of some temporary excitement we feel equal to a long succession of such efforts. But these are exceptional persons and rare moments. To the vast majority of mankind nothing is more agreeable than to escape the need for mental exertion, or, speaking more precisely, to choose only those forms of exertion which are directly accompanied by conscious pleasure and involve little fatigue. In a great many exertions of thought resulting in determinations of the will there is no pleasure, or at any rate no conscious pleasure, or at any rate no pleasure which is not outweighed by an accompanying annoyance. Such exertions may relate to things in which we have slight personal interest, and therefore no desires to gratify, or to things in which our personal interest is so doubtful that we shrink from the trouble of ascertaining which way it lies, and are glad to shift the responsibility from ourselves to whoever will undertake it for us. The ascendency of one of a married couple, for instance, or of one member of a group of persons living together, is usually acquired in some such way. It is not necessarily the will really strongest that in these cases prevails, but the will which is most active, most ready to take a little trouble, to exert itself on trivial occasions and undertake small responsibilities. Persons of a resolute and tenacious character are sometimes also hesitating and undecided, because they cannot be at the trouble of setting to work, for the little questions of daily life, their whole machinery of deliberation and volition. In five persons out of six the instinct to say Yes is stronger than the instinct to say No—were it not so, there would be fewer marriages—and this is specially so when the person who claims consent possesses exceptional force and self-confidence. In other words, most of us hate trouble and like to choose the line of least resistance. In tropical Africa the country is covered by a network of narrow footpaths, made by the natives. These paths seldom run straight, and their flexuosities witness to small obstacles, here a stone and there a shrub, which the feet of those who first marked them avoided. To-day one may perceive no obstacle. The prairie which the path crosses may be smooth and open, yet every traveller follows the windings, because it is less trouble to keep one’s feet in the path already marked than it is to take a more direct route for one’s self. The latter process requires thought and attention; the former does not.

Nor is the compliance of indolence less evident in thought than in action. To most people, nothing is more troublesome than the effort of thinking. They are pleased to be saved the effort. They willingly accept what is given them because they have nothing to do further than to receive it. They take opinions presented to them, and assume rules or institutions which they are told to admire to be right and necessary, because it is easier to do this than to form an independent judgement. The man who delivers opinions to others may be inferior to us in physical strength, or in age, or in knowledge, or in rank. We may think ourselves quite as wise as he is. But he is clear and positive, we are lazy or wavering; and therefore we follow him.

Under the name of Deference it is convenient to include the various cases in which some emotion, drawing one person to another, disposes the former to comply with the will of the latter. Whether the emotion be love, or reverence, or esteem, or admiration, a persuation of superior goodness or of superior wisdom, there is a feeling on the part of the person attracted which makes him ready to sacrifice his own impulses, if they be not of unusual strength, to the will of the person loved or reverenced or admired. Wisdom and goodness give their possessor a legitimate authority, wisdom in making him appear as a fit person to follow where the question is of choosing means, goodness where it is a question of the choice of ends; and the belief that these qualities exist in the person revered or esteemed is just as effective as the reality, such belief being obviously the result of many causes besides a rational scrutiny. The force of the feeling of deference in securing compliance or adhesion varies in different nations and in different states of society. The advantages, for instance, which rank, wealth and learning give to a candidate for any public post in a modern country like France or England, only faintly represent the authority which belonged to birth, learning and sanctity, whether real or supposed, in simpler times. A so-called holy man in the Musulman or Hindu East, a Fakir or a Guru, exerts to-day enormous power in his own neighbourhood, in respect far less of any fear of the harm he can do than simply of the veneration he inspires. Even if he does not claim a direct supernatural mission, his words carry great weight. And there is abundant evidence in the careers of famous Europeans in the East to show how readily in primitive times a remarkable character and career would permanently attach a halo, not only of admiration but of submissive deference, to the descendants of such a person or to the occupant of the office he had filled.

By Sympathy as a ground of obedience I mean not merely the emotion evoked by the sight of a corresponding emotion in another, but the various forms of what may be called the associative tendency of mankind, the disposition to join in doing what one sees others doing, or in feeling as others feel. The root of this instinct lies very near Indolence; for no way of saving effort is so obvious as to do what others have done or are doing; but it is not quite the same thing as Indolence, for it is a tendency strong among some of the less indolent races of mankind, and each of us must have noted from his own personal experience that its action depends as much upon the susceptibility of the imagination as upon the slowness or slackness of the will. There is hardly a more potent factor than this in the formation of communities, whether social or political, because it unites with, if it be not almost identical with, what we call party and civic spirit, substituting a sense of and a pleasure in the exercise of the collective will for the pleasure of exerting the individual will, and thus tending to subordinate the latter, and to make it rejoice in following, perhaps blindly, the will which directs the common action. The shock to individual pride is avoided, because each man acts spontaneously, at the bidding of his own emotion, and each feels that what he may lose as an individual he recovers as a member of the body, and that with a better chance of indulging his passions at the expense of his antagonists. The spirit of the body seems to live in and inspire him, increasing indefinitely the force of his own personality. Obedience to the directing authority is here a first necessity, and becomes the more implicit the greater the dangers of whatever enterprise the body may undertake. As fighting covers great part of the life of primitive communities, the disposition to obey becomes early strong among them, because in nothing is obedience so essential as in war.

Perhaps these three sources of the tendency to comply are really only forms of, as they are certainly all closely connected with, the disposition to imitate which is so strong, not only in man, but throughout the animal kingdom, so far as we can observe it. When ninety-nine sheep one after another jump over a fence at precisely the point where the first of the flock has jumped it, they reveal a propensity similar to that which makes a file of savages travelling over a wilderness each tread in the footsteps of his predecessor, or that which soon stamps the local accent upon the tongue of a child brought from some other part of the country, where the mode of speech was different. There is evidently a psychological, doubtless indeed a physiological, cause for this general and powerful tendency to reproduce the acts and ways of other creatures, even where, as in the case of a local accent, there is no motive whatever for doing so. Conscious imitation is of course frequently explainable by the desire to please, or by a perception of the advantage of doing as others do. But there are many facts to show that its roots lie deeper and that it is due largely to a sympathy between the organs of perception and those of volition, which goes on in unconscious or subconscious states of the mind, and which makes the following of others, the reproduction of their acts, or the adoption of their ideas, to be the path of least resistance, which is therefore usually followed by weaker natures, and frequently even by strong ones.

Of Fear and of Reason nothing need be said, because the school of Hobbes and Bentham for the one, and the apostles of democratic theory for the other, have said more than all that is needed to show the part they respectively play in political society. Fear is no doubt the promptest and most effective means of restraining the turbulent or criminal elements in society; and is of course the last and necessary expedient when authority either legally established or actually dominant is threatened by insurrection. Reason operates, and operates with increasing force as civilization advances, upon the superior minds, leading them to forgo the assertion of their own wills even where such assertion would be in itself innocent or beneficial, merely because the authority which rules in the community has otherwise directed. Reason teaches the value of order, reminding us that without order there can be little progress, and preaches patience, holding out a prospect that evils will be amended by the general tendency for truth to prevail. Reason suggests that it is often better that the law should be certain than that it should be just, that an existing authority should be supported rather than that strife should be caused by the attempt to set up a better one. So also Reason disposes minorities to acquiesce even where a majority is tyrannical, in the faith that tyranny will provoke a reaction and be overthrown by peaceable discussion.

Allowing for the efficacy of Fear as a motive acting powerfully upon the ruder and more brutish natures, and for that of Reason as guiding the more thoughtful and gentle ones, and admitting that neither can be dispensed with in any community, their respective parts would nevertheless seem to be less important than are the parts played by the three first-mentioned motives. If it were possible either in the affairs of the State, or in the private relations of life, to enumerate the number of instances in which one man obeys another, we should find the cases in which either the motive of Fear or the motive of Reason was directly and consciously present to be comparatively few, and their whole collective product in the aggregate of human compliance comparatively small. If one may so express it, in the sum total of obedience the percentage due to Fear and to Reason respectively is much less than that due to Indolence, and less also than that due to Deference or to Sympathy.

In a large proportion of the cases arising in private life the motive of Fear cannot be invoked at all, because there is no power of inflicting harm; and Reason just as little, because the persons who habitually apply ratiocinative processes to their actions are after all few. It may be said that conscious thought is not ordinarily applied to action because Habit supplies its place, and Habit, enabling and disposing us to do without consideration the acts which otherwise would need to be considered, is in fact fossil reason. That is largely so, but Habit is still more often the permanent and unchanging expression of Indolence. Nothing becomes a habit so quickly as does the acquiescence due to Indolence, nor does any tendency strike its roots so deep. And though it is true as regards public or civic matters that physical force is always at hand in the background, we must also recognize that the background is not in fact usually visible to the majority of those who act according to the laws which they obey. They do not necessarily, nor even generally, think of the penalties of the law. They defer to it from respect and because other people defer; they are glad that it is there to save them and other people from trouble. This attitude is not confined to civilized States, but has existed always, even in unsettled societies, where the law might not be able to prevail but for the aid of private citizens.

Of the three springs of Obedience which have been represented as on the whole the stronger, Indolence disguises itself under Deference and Deference is intensified by Sympathy; that is to say, the tendency of men to let others take decisions for them which they might take for themselves becomes much stronger and more constant when they have any ground for believing others to possess some sort of superiority, while the disposition to admit superiority is incomparably more active where a number of other persons are perceived to be also admitting it. A society like that in which modern men live in England or America is apt to suppose that the admission of superiority mortifies a man’s pride, but this is so far from being generally true that the attitude of submission is to most men rather pleasurable than the reverse. So Protestants have been apt to assume that the natural and normal attitude of man in religious matters is independence—a wish to seek out truth for himself, a sense of the duty of consulting his own conscience; whereas the opposite is the fact, and those religious systems take the greatest hold upon man which leave least to individual choice and inculcate, not merely humility towards the Unseen Powers, but the duty of implicitly accepting definite traditions or of revering and following visible ecclesiastical guides.

Some philosophers have talked of Will as the distinctive note of Man—and in so far as the exercise of Will implies a conscious exertion of rational choice it may be admitted to be characteristic of him alone. But in mere tenacity of purpose and persistence in a particular course other animals run him hard. A rogue elephant or a bucking mustang can show as much persistence, sometimes mingled with a craft which seeks to throw the opponent off his guard, and bides its time till the most favourable moment for resistance arrives. In most men the want of individual Will—that is to say, the proneness to comply with or follow the will of another—is the specially conspicuous phenomenon. It is for this reason that a single strenuous and unwearying will sometimes becomes so tremendous a power. There are in the world comparatively few such wills, and when one appears, united to high intellectual gifts, it prevails whichever way it turns, because the weaker bow to it and gather round it for shelter, and, in rallying to it, increase its propulsive or destructive power. It becomes almost a hypnotizing force. One perceives this most strikingly among the weaker races of the world. They are not necessarily the less intelligent races. In India, for instance, an average European finds many Hindus fully his equals in intelligence, in subtlety, and in power of speech; but he feels his own volitions and his whole personality to be so much stronger than that of the great bulk of the native population (excluding a very few races) that men seem to him no more than stalks of corn whom he can break through and tread down in his onward march. This is how India was conquered and is now held by the English. Superior arms, superior discipline, stronger physique, are all secondary causes. There are other races far less cultivated, far less subtle and ingenious, than the Hindus, with whom Europeans have found it harder to deal, because the tenacity of purpose and the pride of the individual were greater. This is the case with the North-American Indians, who fought so fiercely for their lands that it has been estimated that in the long conflict they maintained they have probably killed more white men than they have lost at the hands of the whites. Yet they were far inferior in weapons and in military skill; and they had no religious motives to stimulate their valour.

No one can read the history of the East without being struck by the extraordinary triumphs which a single energetic will has frequently achieved there. A military adventurer, or the chief of a petty tribe, suddenly rises to greatness, becomes the head of an army which attacks all its neighbours, and pursues a career of unbroken conquest till he has founded a mighty empire. Perhaps he raises vast revenues, constructs magnificent works, establishes justice, creates a system of administration which secures order and peace during his lifetime. Men like Thothmes III, Cyrus, and Darius son of Hystaspes, Khosroes Anushirwan, Saladin, Tamerlane, Baber, Akbar the Great, Hyder Ali are in their several ways only the most striking instances of the tremendous effect which a man of exceptional force and activity produces among Oriental peoples Ref. 003. One asks why this happens chiefly in the East. Is there a greater difference in Asiatic than in European peoples between the few most highly-gifted men and the great mass of humanity, so that where the ordinary characters are weak one strong character prevails swiftly and easily? Or is the cause rather to be sought in the fact that in the East there are no permanent institutions of government to be overthrown? That which is strong and permanent there—viz. the customs, religious and legal, of the people—a ruler does not (except in a fit of insanity) venture to touch, while the thrones of neighbouring potentates go down at a stroke before him. In mediaeval and modern Europe, the weakness of the ordinary man was and is entrenched behind a fabric of government and law, which the strongest individual will cannot overthrow; and it is only when this fabric has been shattered by a revolution, as happened in France at the end of the eighteenth century, that the adventurer of genius and volition has a chance of rivalling the heroes of the East.

Thus the comparative stability of governments in mediaeval and modern Europe does not disprove the view which finds in the force of individual will, and the tendency of average men to yield to it, a potent factor in compelling obedience. For in the European countries the resistance offered to the ambition of such a will is effective, not so much because ordinary men are themselves more independent and more capable of opposition as because their superior intelligence has built up well-compacted systems of polity to which obedience has by long habit become attached. Traditions of deference and loyalty have grown up around these systems, so that they enable individuals to stand firmly together, and constitute a solid bulwark against any personality less forceful than that of a Julius Caesar or a Buonaparte.

To this explanation one may perhaps add another. In the East the monarch is as a rule raised so far above his subjects that they are all practically on a level, as compared with him; and those who are for the moment powerful are powerful in virtue of his favour, which has elevated and may at any moment abase them. This has long been the case in Musulman States, and was to a large extent true even in the Byzantine Empire. It is in some degree true in Russia now. Where there is no land-holding or clan-leading aristocracy, nor any richly endowed hierarchy, there may be nothing to diminish the impression of overwhelming power which the sovereign’s position produces. Hence there may be no order of men to set the example of an independence of feeling and attitude which springs from their position as the leaders of their dependents and as entitled to be consulted by the Crown. Such an order of men existed in the feudal aristocracy of the Middle Ages, who have done much to create a type of character in the States of modern Europe. To them has now succeeded, in some modern countries, a so-called aristocracy of wealth, which, vain as it may be of its opportunities for influencing others, is much less stable than was the land-holding class of old days, and much less high-spirited. Meanwhile the general levelling down and up which has created what we call modern democracy has, in reducing the number of those whom rank and tradition had made ‘natural leaders,’ increased the opportunities of strong-willed and unscrupulous men, restless and reckless, versed in popular arts, and adroitly using that most powerful of all agents for propagating uniformity of opinion which we call the newspaper press, powerful because it drives the individual to believe that if he differs from the mass he must be wrong. Such a man may have a career in a huge democracy which he could not have had a century ago, because the forces that resist are fewer and feebler to-day than they were then, and the multitude is more easily fascinated by audacity or force of will, apart from moral excellence, apart from intellectual distinction, than is an aristocratic society.

It may help to explain the theory I am trying to present if we pause for a moment to examine the influences under which the habit of obedience is first formed in the individual man and in the nascent community. For the individual, it begins in the Family; and it grows up there only to a small extent by the action of Force and Fear. The average child, even in the days of a discipline harsher than that which now obtains, did not as a rule act under coercion, but began from the dawn of consciousness to comply with the wish of the parent or the nurse, partly from the sense of dependence, partly from affection, partly because it saw that other children did the like. Force might sometimes be resorted to; but force was in most cases a secondary and subsidiary agency. Nor did force succeed so well as softer methods. Everybody knows that the children who have been most often punished are not the most obedient, nor is this merely because, being naturally self-willed, they have needed more correction. After those little squalls of aimless passion which belong to a certain period in the child’s life have passed away, the boy usually moves as a matter of course at his parents’ bidding until the age is reached when circumstances oblige him to act for himself, or when the sense of independence is stimulated by perceiving that others of his own age will despise him if he remains too submissive. The child whose constant impulse is to disobey is as likely to turn out ineffective as the child who obeys too readily; for perversity is as frequently due to want of affection, sympathy and common sense as to exceptional force of will.

Thus most people enter adult life having already formed the habit of obeying in many things where Force and Fear do not come in at all, but in which the most obvious motive is the readiness to be relieved of trouble and responsibility by following the directions of some one else, presumably superior. They have also formed during boyhood the habit of adopting the opinions of those around them. An acute observer has said that the chief fault of the English public school is that it makes this habit far too strong. Custom—that is to say, whatever is established and obeyed—has great power over them. No conservatism surpasses that of the schoolboy.

It would not be safe to try to find a general explanation of the growth of political communities in the phenomena of domestic life, though it was a favourite doctrine of a past generation that the germ or the type of the State was to be found in the Family. There are some races among whom the Family and its organization seem to have played no great part. But it is clear that in primitive societies three forces, other than Fear, have been extremely powerful—the reverence for ancient lineage, the instinctive deference to any person of marked gifts (with a disposition to deem those gifts supernatural), and the associative tendency which unites the members of a group or tribe so closely together that the practice of joint action supersedes individual choice. These forces have imprinted the habit of obedience so deeply upon early communities that it became a tradition, moulding the minds of succeeding generations. Physical force had plenty of scope in the strife of clans or cities, or (somewhat later) of factions, with one another; but in building up the clan or the city it was hardly needed, for motives more uniform and steady in their efficiency were at work. To pursue this topic would lead us into a field too wide for this occasion; yet it is well to note two facts which stand out in the early history of those communities in which Force and Fear might seem to have had most to do with the formation of governments, and of the habit of obedience to authority. One is the passionate and persistent attachment to a particular reigning family, apart from their personal gifts, apart from their power to serve the community or to terrify it. The Franks in Gaul during the seventh and eighth centuries were as fierce and turbulent a race as the world has ever seen. Their history is a long record of incessant and ferocious strife. From the beginning of the seventh century the Merwing kings, descendants of Clovis, became, with scarcely an exception, feeble and helpless. Their power passed to their vizirs, the Mayors of the Palace, who from about ad 638 onwards were kings de facto. But the Franks continued to revere the blood of Clovis, and when, in 656, a rash Mayor of the Palace had deposed a Merwing and placed his own son on the throne, they rose at once against the insult offered to the ancient line; and its scions were revered as titular heads of the nation for a century longer, till Pippin the Short, having induced the Pope to pronounce the deposition of the last Merwing and to sanction the transfer of the crown to himself, sent that prince into a monastery. This instance is the more remarkable because the Franks, being Christians in doctrine if not in practice, can hardly have continued to hold the divine origin of their dynasty.

The other fact to be dwelt upon is this, that where religion comes into the matter we discover an associative tendency of immense strength, which binds men into a community, and wins obedience for those who, whether as priests or as kings, embody the unity of the community, who represent its collective relation to the Unseen Powers, who approach them with its collective service of prayers or sacrifice. Altars have probably done even more than hearths to stimulate patriotism, especially among those who, like the Romans, had a sort of domestic altar for every hearth, and kept up a worship of family and clan spirits beside the worship of the national gods. It may be said that the power of religion in welding men together and inducing them to obey kings or magistrates or laws is due to the element of Fear in religion. Such an element has no doubt been at work, but its influence is more seen in the requirement of sacrifices to the deities themselves than in enforcing obedience to the authorities and institutions of the State. What commends these latter to reverence is rather the belief that their divine appointment gives them a claim on the affection of the citizens, and makes it a part of piety as well as of patriotism to support them. In the Old Testament, for instance, the love of Jehovah, and the sense of gratitude to Him for His favours to His people, are motives invoked as no less potent than the dread of His wrath. There has always been a tendency, since Christianity lost its first freshness and power, to insist upon the more material motives, upon those which appear palpable and ponderable, such as the fear of future punishment, rather than on those of a more refined and ethereal quality. But it was not by appealing to these lower motives that Christianity originally made its way in the Roman Empire. The element of Fear, though not wholly absent from the New Testament, plays a very subordinate part there, and became larger in mediaeval and modern times. Yet it may be doubted whether, in growing stronger, it increased the efficiency of Christianity as an engine of moral reform. ‘Perfect love casteth out fear.’ It was the gospel of love, and not the fear of hell, that conquered the world, and made men and women willing to suffer death for their faith. The martyrs in the persecutions under Decius and Diocletian, and the Armenian martyrs of 1895, who were counted by thousands, overcame the terror of impending torture and death, not from any thought of penalties in a world to come, but from the sense of honour and devotion which forbade them to deny the God whom they and their parents or forefathers had worshipped.

Returning to the general question of the disposition of the average man to follow rather than to make a path for himself, it may be remarked that the abstract love of liberty, the desire to secure self-government for its own sake, apart from the benefits to be reaped from it, has been a comparatively feeble passion, even in nations far advanced in political development. It is not easy to establish this proposition by instances, because wherever arbitrary power is exercised, there are pretty certain to be tangible grievances as well as a denial of liberty, and where a monarch, or an oligarchy, attempts to deprive a people of the freedom they have enjoyed, they conclude, and with good reason, that oppression is sure to follow. But when the sources of insurrections are examined, it will be almost always found that the great bulk of the insurgents were moved either by the hatred of foreign domination, or by religious passion, or by actual wrongs suffered. Those who in drawing the sword appeal to the love of liberty and liberty only are usually a group of persons who, like the last republicans of Rome, are either exceptional in their sense of dignity and their attachment to tradition, or deem the predominance of a despot injurious to their own position in the State. So we may safely say that rebellions and revolutions are primarily made, not for the sake of freedom, but in order to get rid of some evil which touches men in a more tender place than their pride. They rise against oppression when it reaches a certain point, such as the spoiling of their goods by the tax-gatherer, the invasion of their homes by the minions of tyranny, the enforcement of an odious form of worship, or perhaps some shocking deed of cruelty or lust. Once they have risen, the more ardent spirits involve the sacred name of liberty and fight under its banner. But so long as the government is fairly easy and tolerant, the mere denial of a share in the control of public affairs is not acutely resented, and a great deal of paternally regulative despotism is acquiesced in.

In ad 1863, when Bismarck was flouting the Prussian Parliament, Englishmen were surprised at the coolness with which the Prussian people bore the violations of their not too liberal constitution. The explanation was that the country was well governed, and the struggle for political power did not move peasants and tradesmen otherwise contented with their lot. The English were a people singularly attached to their ancient political and civil rights, yet Charles the First might probably have destroyed the liberties of England, and would almost certainly have destroyed those of Scotland, if he had left religion alone. One of the few cases that can be cited where a great movement sprang from the pure love of independence is the migration of the chieftains of Western Norway to Iceland in the ninth century, rather than admit the overlordship of King Harold the Fair-haired. But even here it is to be remembered that Harold sought to levy tribute: and the Norsemen were of all the races we know those in whom the pride of personality and the spirit of independence glowed with the hottest flame.

There are even times when peoples that have enjoyed a disordered freedom tire of it, and are ready to welcome, for the sake of order, any saviour of society who appears, an Octavianus Augustus or even a Louis Napoleon. The greatest peril to self-government is at all times to be found in the want of zeal and energy among the citizens. This is a peril which exists in democracies as well as in despotisms. Submission is less frequently due to overwhelming force than to the apathy of those who find acquiescence easier than resistance.

Two questions arising out of the view that has been here presented regarding the main sources of Obedience remain to be considered.

One of these, that which bears upon the theory of jurisprudence as a science, being somewhat technical, had better not be suffered to interrupt the course of the general argument. I have therefore relegated it to a note at the end of this essay.

III.: The Future of Political Obedience.

The other question which deserves to be examined is a much wider one. We have inquired what have been the grounds of Obedience in the past, and how it has worked in consolidating political society. We have seen that political society has depended upon the natural inequality in the strength of individual wills and in the activity of individual intellects, so that the weaker have tended to follow and shelter themselves behind the stronger, not so much because the stronger have compelled them to do so as because they have themselves wished to do so. But the conditions of human life and society have of late years greatly changed, and are still continuing to change, in the direction of securing wider scope for independence of thought and action. Society has become orderly, and physical violence plays a smaller and a steadily decreasing part. The multitude, in most of the civilized and progressive countries, can, if and when it pleases, exercise political supremacy through its voting power. There is very much less distinction of ranks than formerly, so that even those who dislike social equality are obliged to profess their love for it. And the opportunities of obtaining knowledge have become infinitely more accessible than they were even a century ago. Changes so great as these must surely—though of course they cannot alter the fundamental facts of human nature—modify the working of the tendencies and habits which man shows in political society. How far, then, are they likely to modify the tendency to Obedience, and in what way? In other words, What will be the relation of Obedience to democracy and to social equality?

It used to be believed, perhaps it is still generally believed, that with the advance of knowledge, the development of intelligence, and the accumulation of human experience, Obedience must necessarily decline, and that therewith governmental control will decay or be deemed superfluous, the good sense of mankind coming in to do for themselves what authority has hitherto done for them. The familiar phrase ‘Anarchy plus a street constable’ was employed to describe the ideal of a government restricted to the fewest possible functions, as that ideal was cherished by the lovers of liberty and the apostles of laissez-faire. There is even a school counting among its members, besides a few assassins, many peaceful and tender-hearted theorists, men of high personal excellence, which maintains that all the troubles of the world spring from the effort of one man, or a group of men, or the general mass of a people, to regulate the relations and guide the conduct of individuals. To this school all forms of government are pretty nearly equally bad, and a Czar, though a more conspicuous mark for denunciation, is scarcely worse than is a Parliament.

The answer to this view, which is attractive, not merely because it is paradoxical, but because it is a protest against some really bad tendencies of human society, and whose ideal, however unattainable, offers larger prospects of pleasure than does that of the ultra-regulators, seems to be that Obedience is an instinct of human nature too strong and permanent to be got rid of, and that the extinction of the State machinery which rules by this instinct, and when necessary enforces its own authority by the strong arm, would not really secure freedom to the weak though it might facilitate oppression by the strong. To assume that human nature will change as soon as provisions for State compulsion have been withdrawn is to misread human nature as we have hitherto known it. Organizations there will be and must be, even if existing governments come to an end: and every organization implies obedience, not only because large enterprises cannot otherwise be worked, but also because the direction, necessarily committed to a few, forms in those few the habit of ruling and disposes others to accept their control. The decline of respect for the State, or even the growth of a habit of disobedience to State authorities, so far from implying a decline in the motives and forces which produce obedience generally, may indicate nothing more than that people have begun to obey some other authorities, and so illustrate our proposition that the obedience rendered to authorities commanding physical force is not always nor necessarily the promptest and the heartiest. New forms of social grouping and organization are always springing up, and in these, if they are to strive for and attain their aims, discipline is essential, because it is only thus that success in a struggle can be won. To keep men tightly knit together power must be lodged in few hands, and the rank and file must take their orders from their officers. Such submission, due at starting partly no doubt to reason, which suggests motives of interest, but largely also to deference and to sympathy, with fear presently added, soon crystallizes into a habit. Any one who will watch any considerable modern movement or series of movements outside the State sphere will perceive how naturally and inevitably guidance falls into a few hands, and how largely success depends on the discipline which those who guide maintain among those who follow; that is to say, on the uniformity and readiness of obedience, and on the strength of the associative habit which makes them all act heartily together. Whether it be a political party, or an ecclesiastical movement, or a combination of employers or of workmen, the same tendencies appear, and victory is achieved by the same methods.

I will name in passing three very recent instances, drawn from the country in which it might be supposed that subordination was least likely to be found, because the principles of democracy and equality have had in it the longest and the fullest vogue. One is to be found in the Boss system in American politics. Such party chieftains as Mr. Croker in New York City, Mr. Cox in Cincinnati, and the well-known masters of the Republican party in the great States of Pennsylvania and New York, wield a power far more absolute, far more unquestioned, than the laws of the United States permit to any official. One must go to Russia to find anything comparable to the despotic control they exert over fellow citizens who are supposed to enjoy the widest freedom the world has known. A second is supplied by the American trade unions, in which a few leaders are permitted by the mass of their fellow workmen to organize combinations and to direct strikes as practical dictators. A trade union is a militant body, and the conditions of war make the leader all-powerful. The third is to be found in the American Trusts or great commercial corporations, aggregations of capital which embrace vast industries and departments of trade employing many thousands of work-people, and which are controlled by a very small number of capable men. Modern commerce, like war, suggests the concentration of virtually irresponsible power in a few hands.

Whether we examine the moral constitution of man or the phenomena of society in its various stages, we shall be led to conclude that the theoretic democratic ideal of men as each of them possessing and exerting an independent reason, conscience, and will, is an ideal too remote from human nature as we know it, and from communities as they now exist, to be within the horizon of the next few centuries, perhaps of all the centuries that may elapse before we are covered by the ice-fields again descending from the Pole or are ultimately engulfed in the sun.

What, then, is the most that a reasonable optimist may venture to hope for? He will hope that ‘the masses’ of democratic countries in the future, since they, like ourselves, must follow a small number of leaders, will ultimately reach a level of intelligence, public spirit and probity which will enable them to select the right leaders, will make the demagogue repulsive, will secure their deference for those whose characters and careers they can approve, and will so far control the associative instinct as to cause their adhesion to party to be governed by a moral judgement on the conduct of the party. The masses cannot have either the leisure or the capacity for investigating the underlying principles of policy or for mastering the details of legislation. Yet they may—so our optimist must hope—attain to a sound perception of the main and broad issues of national and international policy, especially in their moral aspects, a perception sufficient to enable them to keep the nation’s action upon right lines. For the average man to do more than this seems scarcely more possible than that he should examine religious truth for himself, scrutinizing the Christian evidences and reaching independent conclusions upon the Christian dogmas. This is what the extreme Protestant theory, which exalted human reason in the religious sphere no less than democratic theory did in the political sphere, has demanded, and indeed must demand, from the average man. But how many Protestants seek to rise to it? Many of those who grew up under the influence of that inspiriting theory can recall the disappointment with which, between twenty and thirty years of age, they came to perceive that the ideal was unattainable for themselves, and that they must be content to form and live by such views of the meaning of the Bible and of the dogmas held to be deducible therefrom as a reliance on the opinions of the highest critical authorities and of their own wisest friends, coupled with their own limited knowledge of history and with the canons of evidence which they had unconsciously adopted, enabled them to form. Even this, however, has seemed to most of those who have passed through such an experience to be better than a despairing surrender to ecclesiastical authority.

So the optimist aforesaid may argue that the future for which he hopes will represent, not indeed the ideal which democracy sets up, yet nevertheless an advance upon any government the world has yet seen, except perhaps in very small communities or for a brief space of time.

The doctrine that the natural instinct and passion of men was for liberty, because every human being was a centre of independent force, striving to assert itself; the doctrine that political freedom would bring mental independence and a sense of responsibility; that education would teach men, not only to prize their political rights, but also to use them wisely—this doctrine was first promulgated by persons of exceptional vigour, exceptional independence, exceptional hopefulness. These were the qualities that made such men idealists and reformers: and they attributed their own merits to the general body of mankind. It was an admirable ideal. Let us hold to it as long as we can. The world is still young.

Having heard the optimist, we must let the pessimist also state his case. If he is a reasonable pessimist, he will admit that Obedience may be expected to become more and more a product of reason rather than of mere indolence or timidity, because every advance in popular enlightenment or in the participation of the masses in government ought, after the first excitement of unchastened hopes or destructive impulses has passed away, to engender a stronger feeling of the common interest in public order, and of the need for subordinating the demands of a class to the general good. He will also admit that the progress of social equality may tend to increase each man’s sense of individual dignity. But if he is asked to admit further that governments will become purer and better because there will come along with that habit of rational obedience (a habit necessary to enable any government to be efficient) a stronger interest in self-government, a more active public spirit, a constant sense of the duty which each citizen owes to the community to secure an honest and wise administration, he will observe that as we have seen that Obedience rests primarily upon certain instincts and habits woven into the texture of human nature, these instincts and habits will be permanent factors, not necessarily less potent in the future than they have been in the past. He will then ask whether the events of the last seventy years, during which power has, at least in form and semblance, passed from the few to the many, encourage the belief that the spirit of independence, the standard of public duty, and the sense of responsibility in each individual for the conduct of government are really advancing.

Are the omens in this quarter of the heavens so favourable as we are apt to assume?

There is less love of liberty—so our pessimist pursues—than there used to be, perhaps less value set upon the right of a man to express unpopular opinions. There is less sympathy in each country for the struggles which are maintained for freedom in other countries. National antagonisms are as strong as ever they were, and nations seem quite as willing as in the old days of tyranny to forgo domestic progress for the sake of strengthening their militant force against their rivals. There is less faith in, less regard for, that which used to be called the principle of nationality. Peoples which have achieved their own national freedom show no more disposition than did the tyrants of old time to respect the struggles of other peoples to maintain theirs. The sympathy which Germans and Frenchmen used to feel for the oppressed races of the East has disappeared. France has ceased to care about the Cretans or the Poles. England, whose heart went out forty years ago to all who strove for freedom and independence, feels no compunction in blotting out two little republics whose citizens have fought with a valour and constancy never surpassed. The United States ignore the principles of their Declaration of Independence when they proceed to subjugate by force the Philippine Islanders. The modern ideal is no longer liberty, but military strength and commercial development.

If freedom is less prized, it is perhaps because free governments have failed to bear the fruit that was expected from them fifty years ago. The Republic in France seems, after thirty years, to have made the country not much happier or more contentedly tranquil than it was under Louis Napoleon or Louis Philippe. It maintains, to the eyes of foreign observers, a precarious life from year to year, now and then threatened by plots military, political, or ecclesiastical. A free and united Italy has not realized the hopes of the great men to whom she owes her unity and her freedom. The United States have at least as much corruption in their legislatures, and worse government in their great cities, with fewer men of commanding ability in their public life, than before the Civil War, when it was believed that all evils would disappear with the extinction of slavery. In particular, representative government, in which the hopes of the apostles of progress were centred half a century ago, has fallen into discredit. In some countries the representative is more timid, more willing to be turned into a mere delegate, more at the mercy of a party organization, than he was formerly. In others the popular assembly is so much distrusted that men seek to override it by introducing a so-called plebiscite or referendum to review its decisions.

No result was more confidently expected from the enlightenment of the bulk of the people than the triumph, a speedy and complete triumph, of sound economic doctrines, such as those which prescribe the adoption of Free Trade in commercial legislation and reliance upon self-help rather than State-help in poor law matters and generally in social improvements. But the United Kingdom is the only country in which Free Trade holds the field, and in the United Kingdom the true and wholesome principles of poor law administration, as set forth by Chalmers and by the famous Commissioners of 1834, have rather lost than gained ground.

The doctrines of Laissez-Faire and Individualism have suffered an eclipse. The State interferes more and more with the power of the individual to do as he pleases. Its motives are usually excellent, but the result is to subject his life to a closer and more repressive supervision. This means more obedience, less exercise of personal discretion, less of that virtue which guides the self-determining will to choose the good and reject the evil. ‘If every action,’ says John Milton, ‘which is good or evil in man at ripe years were to be under pittance, prescription and compulsion, what were virtue but a name—what praise could be then due to well-doing, what gramercy to be sober, just or continent?’

Nor is it only the State (whether through central or through local authorities) that threatens individual freedom. Masses of working men surrender themselves to the control of the few chiefs of their trade organization, who are hardly the less despotic in fact because they are elected and because they are nominally subject to a control which those who have elected them cannot, from the nature of the case, effectively exert Ref. 004. Thus there is, instead of more independence, always more and more obedience.

To one who believes the principles of Free Trade and Self-Help to be irrefragably true this means that the bulk of the people are not, as was formerly expected, thinking for themselves, perhaps are not capable of thinking for themselves, while those persons who are capable fear to contend for doctrines which happen to be unpopular because opposed to ignorant or superficial views of what is the interest of a nation or of the most numerous class in the nation.

In the enlightenment of the people, which was to increase their independence of spirit and their zeal for good government, the chief part was to be played by the public press. Its influence has increased beyond the most sanguine anticipations of the last generation of reformers whether in Great Britain or in Continental Europe. It employs an enormous amount of literary talent. Nothing escapes its notice. But in some countries it has become a powerful agent for blackmailing; in others it is largely the tool of financial speculators; in others, again, it degrades politics by vulgarizing them, or seeks to increase its circulation by stimulating the passion of the moment. Pecuniary considerations cannot but affect it, because a newspaper is a commercial concern, whose primary aim is to make a profit. Almost everywhere it tends to embitter racial animosities and make more difficult the preservation of international peace. When it tells each man that the views it expresses are those of everybody else, except a few contemptible opponents, it increases the tendency of each man to fall in with the views of the mass, and confirms that habit of passive acquiescence which the progress of enlightenment was once expected to dispel.

The growth in population of the great industrial nations, such as Germany, England, and the United States, may tend to dwarf the sense in each man of his own significance to the whole body politic, and dispose him to make less strenuous efforts than he would have put forth had he thought his own exertions more likely to tell upon the community. The vaster the people the more trivial must the individual appear to himself, and the more readily will he fall in with what the majority think or determine.

The rise of wages among the poorer classes and the bettering of material conditions in all classes were expected to give the bulk of the people more leisure, and it was assumed that this would induce them to bestow more attention upon public affairs and so stimulate them in the discharge of civic duties. Wages have risen everywhere, notably in England and the United States, and material conditions have improved. But new interests have therewith been awakened, and pleasures formerly unattainable have been brought within the reach of every class except the very poorest. Whatever other benefits this change brings, it has not tended to make civic duty more prominent in the mind of the average man. With some, material enjoyments, with others physical exercise, or what is called sport (including the gambling that accompanies many kinds of sport), with others the more refined pleasures of art or literature, have come in to occupy the greatest part of such time and thought as can be spared from daily work; and public affairs receive no more, perhaps even less, of their attention than was formerly given.