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by the masses, though absolutely small are relatively great; or else it is taken for granted that on nine-tenths of the population who are too poor to institute legal proceedings, no civil injuries of moment are ever inflicted !
Nor is this all. It is not true that making the law easy of access would increase litigation. An opposite effect would be produced. The prophecy is vitiated by that very common mistake of calculating the result of some new arrangement on the assumption that all other things would remain as they are. It is taken for granted that under the hypothetical régime just as many transgressions would occur as at present. Whereas any candid observer can see that most of the civil offences now committed, are committed in consequence of the inefficiency of our judicial system;
“For sparing justice feeds iniquity.” It is the difficulty which he knows there will be in convicting him which tempts the knave to behave knavishly. Were not the law so expensive and so uncertain, dishonest traders would never risk the many violations of it they now do. The trespasses of the wealthy against the poor would be rare, were it not that the aggrieved have practically no remedy. Mark how, to the man who contemplates wronging his fellow, our legal system holds out promises of impunity. Should his proposed victim be one of small means, there is the likelihood that he will not be able to carry on a law-suit: here is encouragement. Should he possess enough money, why, even then, having, like most people, a great dread of litigation, he will probably bear his loss unresistingly: here is further encouragement. Lastly, our plotter remembers that, should his victim venture an action, judicial decisions are very much matters of accident, and that the guilty are often rescued by clever counsel : here is still more encouragement. And so, all things considered, he determines to chance it. Now, he would never decide thus were legal protection efficient. Were the administration of law prompt, gratuitous, and certain,
those probabilities and possibilities which now beckon him on to fraudulent acts would vanish. Only in cases where both parties sincerely believed themselves right, would judicial arbitration be called for; and the number of such cases is comparatively small. Litigation, therefore, so far from increasing if justice were made easy of obtainment, would probably decrease.
But, after all, it is not the setting up of this or that system of jurisprudence which causes the intercourse of men with one another to be equitable or otherwise. The matter lies deeper. As with forms of government, so with forms of law, it is the national character that decides. The power of an apparatus primarily depends, not on the ingenuity of its design, but on the strength of its materials. Be his plan never so well devised, yet if our engineer has not considered whether the respective parts of his structure will bear the strains to be put upon them, we must call him a bungler. Similarly with the institution-maker. If the people with whom he has to deal are not of the requisite quality, no cleverness in his contrivance will avail anything. Let us not forget that institutions are made of men, and that frame them together as we may, it is their nature which must finally determine whether the institutions can stand. These social forms which we regard as all-potent, are things of quite secondary importance. What mattered it that the Roman plebeians were endowed with certain privileges, when the patricians prevented them from exercising those privileges by ill-treatment carried even to the death? What mattered it that our statute-book contained equitable provisions, and that officers were appointed to enforce them, when there needed a Magna Charta to demand that justice should neither be sold, denied, nor delayed? What matters it even now, that all men are declared equal before the law, when magistrates are swayed by class-sympathies, and treat a gentleman more leniently than an artizan? If we think that we can rectify
the relationships of men at will, we deceive ourselves. What Sir James Mackintosh says of constitutions—that they are not made but grow-applies to all social arrangements. It is not true that once upon a time men said—“Let there be law;" and there was law. Administration of justice was originally impracticable, Utopian, and has become more and more practicable only as men have become less savage. The old system of settling disputes by personal contest, and the new system of settling them by State-arbitration, have coexisted throughont all ages: the one little by little taking the place of the other-outgrowing it. The feudal baron with castle and retainers maintained his own rights, and would have considered himself disgraced by asking legal aid. Even after he had agreed to regard his suzerain as umpire, it was still in the lists, and by the strength of his arm and his lance, that he made good his cause. And when we remember that equally among lords and labourers this practice long lingered, —that until lately we had duels, which it was thought dishonourable for gentlemen to avoid by applying to a magistrate, and that even still we have pugilistic fights, which the people try to hide from the police; we are taught that it is impossible for a judicial system to become efficient faster than men become good. It is only after public morality has gained a certain ascendency, that the civil power gets strong enough to perform its simplest functions. Before this it cannot even put down banditti; border forays continue in spite of it; and it is bearded in its very strongholds, as, among ourselves, by the thieves of Whitefriars but two centuries ago. Under early governments the officers of law are less friends than enemies. Legal forms are commonly used for purposes of oppression. Causes are decided by favouritism, bribery, and backstairs intrigue. The judicial apparatus breaks down under the work it has to do; and shows us in a Jonathan Wild, a Judge Jeffries, and even a Lord Chancellor Bacon, how inevitably its several parts are rendered inoperative by a generally-diffused wickedness. And when we read of Orange magistrates who become aggressors rather than protectors; of policemen who conspire with one another to obtain convictions that they may be promoted; and of the late Palace Court, whose officers habitually favoured the plaintiff, with the view of inducing men to enter suits there, we find that now, as of old, judicial protection is vitiated by the depravity
of the age.
The civil power no more does what to the careless eye
it seems to do, than the juggler really performs his apparent miracles. It is impossible for man to create force. He can only alter the mode of its manifestation, its direction, its distribution. The power which propels his steamboats and locomotives is not of his making; it was all lying latent in the coal. He telegraphs by an agent set free during the oxidation of zinc, but of which no more is obtained than is due to the number of atoms that have combined. The very energy he expends in moving his arm is generated by the chemical affinities of the food he eats. In no case can he do anything but avail himself of dormant forces. This is as true in ethics as in physics. Moral feeling is a force—a force by which men's actions are to be restrained within certain bounds; and no legislative mechanism can really increase its results. By how much this force is deficient, hy so much must its work remain undone. In whatever degree we lack the qualities needful for our state, in the same degree must we suffer. Nature will not be cheated. Whoso should think to escape the influence of gravitation by throwing his limbs into some peculiar attitude, would not be more deceived than are those who hope to avoid the weight of their depravity by arranging themselves into this or that form of political organization. Every jot of the evil must in one way or other be borne—consciously or unconsciously; either in a shape that is recognized, or else under some disguise. No philosopher's stone of a constitution can produce golden conduct from leaden instincts. No apparatus of senators, judges, and police,
can compensate for the want of an internal governing sentiment. No legislative manipulation can eke out an insufficient morality into a sufficient one. No administrative sleight of hand can save us from ourselves.
But must not this imply that government is of no use whatever? Not at all. Although unable to alter the sumtotal of injustice to be supported, it can still alter its distribution. And this is what it really does. By its aid, men to a considerable extent equalize the evil they have to bearspread it out more uniformly over the whole community, and over the life of each citizen. Entire freedom to exercise the faculties, interrupted by entire deprivations of it, and marred by the perpetual danger of these deprivations, is exchanged for a freedom on which the restrictions are constant but partial. Instead of those losses of life, of limb, or of the means of subsistence, which, under a state of anarchy, all are liable to, and many suffer, a political organization commits universal aggressions of a comparatively mild type. Wrongs that were before occasional but crushing, are now unceasing but bearable. The system is one of mutual insurance against moral disasters. Just as men, while they cannot prevent fires and shipwrecks, can yet guarantee one another against ruin from these, by bearing them in common, and distributing the injuries entailed over long periods of time; so, although by uniting together for judicial purposes men cannot diminish the amount of injustice to be borne, they can, and do, insure themselves against its otherwise fatal results.
When we agreed that it was the essential function of the State to protect-to administer the law of equal freedom-to maintain men's rights; we virtually assigned to it the duty, not only of shielding each citizen from the trespasses of his neighbours, but of defending him, in common with the community at large, against foreign aggressions. An invading force may violate people's rights as much as, or far more