The Crown of Wild Olive
forge the iron fetter, and cast the passing bell.
113. Since no law can be, in a final or true sense, established, but by
right, (all unjust laws involving the ultimate necessity of their own
abrogation), the law-giving can only become a law-sustaining power in so
far as it is Royal, or "right doing;"--in so far, that is, as it rules,
not misrules, and orders, not dis-orders, the things submitted to it.
Throned on this rock of justice, the kingly power becomes established
and establishing; "[Greek: theios]," or divine, and, therefore, it is
literally true that no ruler can err, so long as he is a ruler, or
[Greek: archon oudeis amartanei tote hotan archon e]; perverted by
careless thought, which has cost the world somewhat, into--"the king can
do no wrong."
114. B. MERISTIC LAW,[60] or that of the tenure of property, first
determines what every individual possesses by right, and secures it to
him; and what he possesses by wrong, and deprives him of it. But it has
a far higher provisory function: it determines what every man _should_
possess, and puts it within his reach on due conditions; and what he
should _not_ possess, and puts this out of his reach, conclusively.
115. Every article of human wealth has certain conditions attached to
its merited possession; when these are unobserved, possession becomes
rapine. And the object of meristic law is not only to secure to every
man his rightful share (the share, that is, which he has worked for,
produced, or received by gift from a rightful owner), but to enforce the
due conditions of possession, as far as law may conveniently reach; for
instance, that land shall not be wantonly allowed to run to waste, that
streams shall not be poisoned by the persons through whose properties
they pass, nor air be rendered unwholesome beyond given limits. Laws of
this kind exist already in rudimentary degree, but need large
development; the just laws respecting the possession of works of art
have not hitherto been so much as conceived, and the daily loss of
national wealth, and of its use, in this respect, is quite incalculable.
And these laws need revision quite as much respecting property in
national as in private hands. For instance: the public are under a vague
impression that, because they have paid for the contents of the British
Museum, every one has an equal right to see and to handle them. But the
public have similarly paid for the contents of Woolwich arsenal; yet do
not expect free access to it, or handling of its contents. The British
Museum is neither a free circulating library, nor a free school: it is a
place for the safe preservation, and exhibition on due occasion, of
unique books, unique objects of natural history, and unique works of
art; its books can no more be used by everybody than its coins can be
handled, or its statues cast. There ought to be free libraries in every
quarter of London, with large and complete reading-rooms attached; so
also free educational museums should be open in every quarter of London,
all day long, until late at night, well lighted, well catalogued, and
rich in contents both of art and natural history. But neither the
British Museum nor National Gallery is a school; they are _treasuries_;
and both should be severely restricted in access and in use. Unless some
order of this kind is made, and that soon, for the MSS. department of
the Museum, (its superintendents have sorrowfully told me this, and
repeatedly), the best MSS. in the collection will be destroyed,
irretrievably, by the careless and continual handling to which they are
now subjected.
Finally, in certain conditions of a nation's progress, laws limiting
accumulation of any kind of property may be found expedient.
116. C. CRITIC LAW determines questions of injury, and assigns due
rewards and punishments to conduct.
Two curious economical questions arise laterally with respect to this
branch of law, namely, the cost of crime, and the cost of judgment. The
cost of crime is endured by nations ignorantly, that expense being
nowhere stated in their budgets; the cost of judgment, patiently,
(provided only it can be had pure for the money), because the science,
or perhaps we ought rather to say the art, of law, is felt to found a
noble profession and discipline; so that civilized nations are usually
glad that a number of persons should be supported by exercise in oratory
and analysis. But it has not yet been calculated what the practical
value might have been, in other directions, of the intelligence now
occupied in deciding, through courses of years, what might have been
decided as justly, had the date of judgment been fixed, in as many
hours. Imagine one half of the funds which any great nation devotes to
dispute by law, applied to the determination of physical questions in
medicine, agriculture, and theoretic science; and calculate the probable
results within the next ten years!
I say nothing yet of the more deadly, more lamentable loss, involved in
the use of purchased, instead of personal, justice--[Greek: "epakto par
allon--aporia oikeion."]
117. In order to true analysis of critic law, we must understand the
real meaning of the word "injury."
We commonly understand by it, any kind of harm done by one man to
another; but we do not define the idea of harm: sometimes we limit it to
the harm which the sufferer is conscious of; whereas much the worst
injuries are those he is unconscious of; and, at other times, we limit
the idea to violence, or restraint; whereas much the worse forms of
injury are to be accomplished by indolence, and the withdrawal of
restraint.
118. "Injury" is then simply the refusal, or violation of, any man's
right or claim upon his fellows: which claim, much talked of in modern
times, under the term "right," is mainly resolvable into two branches: a
man's claim not to be hindered from doing what he should; and his claim
to be hindered from doing what he should not; these two forms of
hindrance being intensified by reward, help, and fortune, or Fors, on
one side, and by punishment, impediment, and even final arrest, or Mors,
on the other.
119. Now, in order to a man's obtaining these two rights, it is clearly
needful that the _worth_ of him should be approximately known; as well
as the _want_ of worth, which has, unhappily, been usually the principal
subject of study for critic law, careful hitherto only to mark degrees
of de-merit, instead of merit;--assigning, indeed, to the _De_ficiencies
(not always, alas! even to these) just estimate, fine, or penalty; but
to the _Ef_ficiencies, on the other side, which are by much the more
interesting, as well as the only profitable part of its subject,
assigning neither estimate nor aid.
120. Now, it is in this higher and perfect function of critic law,
_en_abling instead of _dis_abling, that it becomes truly Kingly, instead
of Draconic: (what Providence gave the great, wrathful legislator his
name?): that is, it becomes the law of man and of life, instead of the
law of the worm and of death--both of these laws being set in changeless
poise one against another, and the enforcement of both being the eternal
function of the lawgiver, and true claim of every living soul: such
claim being indeed strong to be mercifully hindered, and even, if need
be, abolished, when longer existence means only deeper destruction, but
stronger still to be mercifully helped, and recreated, when longer
existence and new creation mean nobler life. So that reward and
punishment will be found to resolve themselves mainly[61] into help and
hindrance; and these again will issue naturally from time recognition of
deserving, and the just reverence and just wrath which follow
instinctively on such recognition.
121. I say, "follow," but, in reality, they are part of the recognition.
Reverence is as instinctive as anger;--both of them instant on true
vision: it is sight and understanding that we have to teach, and these
_are_ reverence. Make a man perceive worth, and in its reflection he
sees his own relative unworth, and worships thereupon inevitably, not
with stiff courtesy, but rejoicingly, passionately, and, best of all,
_restfully_: for the inner capacity of awe and love is infinite in man,
and only in finding these, can we find peace. And the common insolences
and petulances of the people, and their talk of equality, are not
irreverence in them in the least, but mere blindness, stupefaction, and
fog in the brains,[62] the first sign of any cleansing away of which is,
that they gain some power of discerning, and some patience in submitting
to, their true counsellors and governors. In the mode of such
discernment consists the real "constitution" of the state, more than in
the titles or offices of the discerned person; for it is no matter, save
in degree of mischief, to what office a man is appointed, if he cannot
fulfil it.
122. III. GOVERNMENT BY COUNCIL.
This is the determination, by living authority, of the national conduct
to be observed under existing circumstances; and the modification or
enlargement, abrogation or enforcement, of the code of national law
according to present needs or purposes. This government is necessarily
always by council, for though the authority of it may be vested in one
person, that person cannot form any opinion on a matter of public
interest but by (voluntarily or involuntarily) submitting himself to the
influence of others.
This government is always twofold--visible and invisible.
The visible government is that which nominally carries on the national
business; determines its foreign relations, raises taxes, levies
soldiers, orders war or peace, and otherwise becomes the arbiter of the
national fortune. The invisible government is that exercised by all
energetic and intelligent men, each in his sphere, regulating the inner
will and secret ways of the people, essentially forming its character,
and preparing its fate.
Visible governments are the toys of some nations, the diseases of
others, the harness of some, the burdens of more the necessity of all.
Sometimes their career is quite distinct from that of the people, and to
write it, as the national history, is as if one should number the
accidents which befall a man's weapons and wardrobe, and call the list
his biography. Nevertheless, a truly noble and wise nation necessarily
has a noble and wise visible government, for its wisdom issues in that
conclusively.
123. Visible governments are, in their agencies, capable of three pure
forms, and of no more than three.
They are either monarchies, where the authority is vested in one person;
oligarchies, when it is vested in a minority; or democracies, when
vested in a majority.
But these three forms are not only, in practice, variously limited and
combined, but capable of infinite difference in character and use,
receiving specific names according to their variations; which names,
being nowise agreed upon, nor consistently used, either in thought or
writing, no man can at present tell, in speaking of any kind of
government, whether he is understood; nor, in hearing, whether he
understands. Thus we usually call a just government by one person a
monarchy, and an unjust or cruel one, a tyranny: this might be
reasonable if it had reference to the divinity of true government; but
to limit the term "oligarchy" to government by a few rich people, and to
call government by a few wise or noble people "aristocracy," is
evidently absurd, unless it were proved that rich people never could be
wise, or noble people rich; and farther absurd, because there are other
distinctions in character, as well as riches or wisdom (greater purity
of race, or strength of purpose, for instance), which may give the power
of government to the few. So that if we had to give names to every group