Not by lawyers only, but by most other people this condition of things is defended; and the proposition that it is the duty of the State to administer justice without cost, in civil as well as in criminal cases, is ridiculed: as, indeed, every more equitable arrangement is ridiculed before successful establishment of it proves its propriety. It is argued that did the State arbitrate between men gratis, the courts would be so choked with cases as to defeat the end by delay: to say nothing of the immense expense entailed on the country. But this objection proceeds upon the vicious assumption that while one thing is changed other things remain the same. It is supposed that if justice were certain and could be had without cost, the number of trespasses would be as great as now when it is uncertain and expensive! The truth is that the immense majority of civil offences are consequent on the inefficient administration of justice—would never have been committed had the penalties been certain.

But when we come to contemplate it, it is a marvellous proposition, this which the objection implies, that multitudinous citizens should be left to bear their civil wrongs in silence or risk ruin in trying to get them rectified; and all because the State, to which they have paid great sums in taxes, cannot be at the trouble and expense of defending them! The public evil of discharging this function would be so great, that it is better for countless citizens to suffer the evils of impoverishment and many of them of bankruptcy! Meanwhile, through the officers of its local agents, the State is careful to see that their stink-traps are in order!

§ 115. One further duty of the State, indirectly included in the last but distinguishable from it, must be set down, and its consequences specified. I refer to its duty in respect of the inhabited territory.

For employments of the surface other than those already

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established, and tacitly authorized by the community through its government, there require State - authorizations. As trustee for the nation the government has to decide whether a proposed undertaking-road, canal, railway, dock, &c.— which will so change some tract as to make it permanently useless for ordinary purposes, promises to be of such public utility as to warrant the alienation; and has to fix the terms for its warrant: terms which, while they deal fairly with those who stake their capital in the enterprise, and while they protect the rights of the existing community, also keep in view the interests of future generations, who will hereafter be supreme owners of the territory. For the achievement of these several ends, the equitable arrangement would seem to be, not a permanent alienation of the required tract; nor an unscrupulous breaking of the contract by the State at will, as now; but an alienation for a specified period, with the understanding that the conditions may, at the termination of that period, be revised.

In discharge of its duties as trustee, the ruling body has to exercise a further control-allied but different. If not itself, then by its local deputies, it has to forbid or allow the breaking up of streets, roads, and other public spaces for the establishment or repair of water, gas, telegraph, and kindred appliances. Such supervisions are required for protecting each and all members of the community against the aggressions of particular members or groups of members.

That like considerations call for oversight by the State of rivers, lakes, or other inland waters, as also of the adjacent sea, is sufficiently clear. On the uses made of these and their contents, there may rightly be put such restraints as the interests of the supreme owner, the community, demand.

§ 116. And now what are these duties of the State considered under their most general aspect? What has a

society in its corporate capacity to do for its members in their individual capacities? The answer may be given in several ways.

The prosperity of a species is best subserved when among adults each experiences the good and evil results of his own nature and consequent conduct. In a gregarious species fulfilment of this need implies that the individuals shall not so interfere with one another as to prevent the receipt by each of the benefits which his actions naturally bring to him, or transfer to others the evils which his actions naturally bring. This, which is the ultimate law of species life as qualified by social conditions, it is the business of the social aggregate, or incorporated body of citizens, to maintain.

This essential requirement has to be maintained by all for each, because each cannot effectually maintain it for himself. He cannot by himself repel external invaders; and on the average, his resistance to internal invaders, if made by himself or with the aid of a few, is either inefficient, or dangerous, or costly, or wasteful of time, or all of these. To which add that universal self-defence implies chronic antagonisms, either preventing or greatly impeding cooperation and the facilitations to life which it brings. Hence, in distinguishing between things to be done by corporate action and things to be done by individual action, it is clear that, whether or not it does anything else, corporate action may rightly be used to prevent interferences with individual action beyond such as the social state itself necessitates.

Each citizen wants to live, and to live as fully as his surroundings permit. This being the desire of all, it results that all, exercising joint control, are interested in seeing that while each does not suffer from breach of the relation between acts and ends in his own person, he shall not break those relations in the persons of others. The incorporated mass of citizens has to maintain the conditions

under which each may gain the fullest life compatible with the fullest lives of fellow citizens.

Whether the State has other duties is a question which remains now to be discussed. Between these essential functions and all other functions there is a division which, though it cannot in all cases be drawn with precision, is yet broadly marked. To maintain intact the conditions under which life may be carried on is a business fundamentally distinct from the business of interfering with the carrying on of the life itself, either by helping the individual or directing him, or restraining him. We will first inquire whether equity permits the State to undertake this further business; and we will then inquire whether considerations of policy coincide with considerations of equity.

CHAPTER XXVI.

THE LIMITS OF STATE-DUTIES.

§ 117. During those early stages in which the Family and the State were not differentiated, there naturally arose the theory of paternal government. The members of the group were "held together by common obedience to their highest living ascendant, the father, grandfather, or greatgrandfather." Ignoring those still earlier social groups of which Sir Henry Maine takes no account, we may accept his generalization that among Aryan and Semitic peoples, the despotic power of the father over his children, surviving more or less as his children became heads of families, and as again their children did the same, gave a general character to the control exercised over all members of the group. The idea of government thus arising, inevitably entered into the idea of government which became established as compound families grew into communities; and it survived when many of such small communities, not allied in blood or but remotely allied, became consolidated into larger societies.

The theory of paternal government originating in this way is a theory which tacitly asserts the propriety of unlimited government. The despotic control of the father extends to all acts of his children; and the patriarchal government growing out of it, naturally came to be exercised over the entire lives of those who were subject. The stage was one