We have been considering responsible freedom as it centers in and affects individuals in their distinctive capacities. It implies a public order which guarantees, defines, and enforces rights and obligations. This public order has a twofold relation to rights and duties: (1) As the social counterpart of their exercise by individuals, it constitutes Civil Society. It represents those forms of associated life which are orderly and authorized, because constituted by individuals in the exercise of their rights, together with those special forms which protect and insure them. Families, clubs, guilds, unions, corporations come under the first head; courts and civil administrative bodies, like public railway and insurance commissions, etc., come under the second. (2) The public order also fixes the fundamental terms and conditions on which at any given time rights are exercised and remedies secured; it is organized for the purpose of defining the basic methods of exercising the activities of its constituent elements, individual and corporate. In this aspect it is the State.

§ 1. CIVIL RIGHTS AND OBLIGATIONS

Every act brings the agent who performs it into association with others, whether he so intends or not. His act takes effect in an organized world of action; in social arrangement and institutions. So far as such combinations of individuals are recurrent or stable, their nature and operations are definitely formulated and definitely enforceable. Partnerships, clubs, corporations, guilds, families are such stable unions, with their definite spheres of action. Buying and selling, teaching and learning, producing and consuming, are recurrent activities whose legitimate methods get prescribed. These specific provinces and methods of action are defined in Civil Rights. They express the guaranteed and regular ways in which an individual, through action, voluntarily enters into association or combination with others for the sake of a common end. They differ from political rights and obligations in that the latter concern modes of social organization which are so fundamental that they are not left to the voluntary choice and purpose of an individual. As a social being, he must have political relationships, must be subject to law, pay taxes, etc.

1. Contract Rights.—Modes of association are so numerous and variable that we can only select those aspects of civil rights which are morally most significant. We shall discriminate them according as they have to do (1) with the more temporary and casual combinations of individuals, for limited and explicit purposes; and (2) with more permanent, inclusive, and hence less definable ends; and (3) with the special institutions which exist for guaranteeing individuals the enjoyment of their rights and providing remedies if these are infringed upon. (1) Contract rights. Rights of the first type are rights resulting from express or implied agreements of certain agents to do or refrain from doing specific acts, involving exchange of services or goods to the mutual benefit of both parties in the transaction. Every bargain entered into, every loaf of bread one buys or paper of pins one sells, involves an implied and explicit contract. A genuinely free agreement or contract means (i.) that each party to the transaction secures the benefit he wants; (ii.) that the two parties are brought into coÖperative or mutually helpful relations; and that (iii.) the vast, vague, complex business of conducting social life is broken up into a multitude of specific acts to be performed and of specific goods to be delivered, at definite times and definite places. Hence it is hardly surprising that one school of social moralists has found in the conception of free contract its social ideal. Every individual concerned assumes obligations which it is to his interest to perform so that the performance is voluntary, not coerced; while, at the same time, some other person is engaged to serve him in some way. The limitations of the contract idea will concern us later.

2. The Permanent Voluntary Associations.—Partnerships, limited liability corporations, guilds, trades unions, churches, schools, clubs, are more permanent and comprehensive associations, involving more far-reaching rights and obligations. Societies organized for conversation and sociability or conviviality, "corporations not for profit," but for mutual enjoyment or for benevolent ends, come under the same head. Most significant are the associations which, while entered only voluntarily and having therefore a basis in contract, are for generic ends. Thus they are permanent, and cover much more than can be written in the contract. Marriage, in modern society, is entered into by contract; but married life is not narrowed to the exchange of specific services at specific times. It is a union for mutual economic and spiritual goods which are coextensive with all the interests of the parties. In its connection with the generation and rearing of children, it is a fundamental means of guarding all social interests and of directing their progress. Schools, colleges, churches, federations of labor, organizations of employers, and of both together, represent other forms of permanent voluntary organizations which may have the most far-reaching influence both upon those directly concerned and upon society at large.

3. Right to Use of Courts.—All civil rights get their final application and test in the right to have conflicting rights defined and infringed rights remedied by appeal to a public authority having general and final jurisdiction. "The right to sue and be sued" may seem too legal and external a matter to be worthy of much note in an ethical treatise; but it represents the culmination of an age-long experimentation with the problem of reconciling individual freedom and public order. No civil right is effective unless it carries with it a statement of a method of enforcement and, if necessary, of redress and remedy. Otherwise it is a mere name. Moreover, conflicts of civil rights are bound to occur even when there is good faith on the part of all concerned, just because new situations arise. Unless there is a way of defining the respective rights of each party in the new situation, each will arbitrarily and yet in good faith insist upon asserting his rights on the old basis: private war results. A new order is not achieved and the one already attained is threatened or disrupted. The value of rights to the use of courts resides, then, to a comparatively small degree, in the specific cases of deliberate wrong which are settled. What is more important is that men get instruction as to the proper scope and limits of their activities, through the provision of an effective mechanism for amicable settlement of disputes in those cases in which rights are vague and ambiguous because the situations are novel.

Classes of Wrongs and Remedies.—Infringements upon rights, such as murder, theft, arson, forgery, imply a character which is distinctly anti-social in its bent. The wrong, although done to one, is an expression of a disposition which is dangerous to all. Such a wrong is a crime; it is a matter for the direct jurisdiction of public authority. It is the business of all to coÖperate in giving evidence, and it may render one a criminal accomplice to conceal or suppress evidence, just as it is "compounding a felony" for the wronged individual to settle the wrong done him by arranging privately for compensation. The penalty in such cases is generally personal; imprisonment or at least a heavy fine. The violation may, however, be of the nature of a wrong or "tort," rather than of a crime; it may indicate a disposition indifferent to social interests or neglectful of them rather than one actively hostile to them. Such acts as libels, trespasses upon the land of another, are illustrations. In such cases, the machinery of justice is put in motion by the injured individual, not by the commonwealth. This does not mean that society as a whole has no interest in the matter; but that under certain circumstances encouraging individuals to look out for their own rights and wrongs is socially more important than getting certain wrongs remedied irrespective of whether men stand up for their own rights or not. Then again, there are civil disputes which indicate neither a criminal nor a harmful disposition, but rather uncertainty as to what the law really is, leading to disputes about rights—interpretations of a contract, express or implied. Here the interest of society is to provide a method of settlement which will hinder the growth of ill will and private retaliation; and which also will provide precedents and principles that will lessen uncertainty and conflict in like cases in the future.

Peace and tranquillity are not merely the absence of open friction and disorder. They mean specific, easily-known, and generally recognized principles which determine the province and limits of the legitimate activity of every person. Publicity, standards, rules of procedure, remedies acknowledged in common, are their essence. Res publica, the common concern, remains vague and latent till defined by impartial, disinterested social organs. Then it is expressed in regular and guaranteed modes of activity. In the pregnant phrase of Aristotle, the administration of justice is also its determination: that is, its discovery and promulgation.

§ 2. DEVELOPMENT OF CIVIL RIGHTS

Contrast of Primitive with Present Justice.—The significance of the accomplishments and the defects of the present administration of law may be brought out by a sketch of its contrast with primitive methods. In savage and barbarian society, on account of the solidarity of the kin-group, any member of the group is likely to be attacked for the offense of any other (see p. 28). He may not have participated in the act, or have had complicity in planning it. His guilt is that the same blood runs in his veins.[204] The punitive attack, moreover, is made directly and promiscuously by the injured man and by his blood-relatives; it is made in the heat of passion or in the vengeance of stealth as custom may decree. Says Hearn, the state "did not interfere in the private quarrels of its citizens. Every man took care of his own property and his own household, and every hand guarded its own head. If any injury were done to any person, he retaliated, or made reprisals, or otherwise sought redress, as custom prescribed."[205] The reprisal may itself have called for another, and the blood-feud was on. In any case, the state of affairs was one literally, not metaphorically, described as "private war."

Changes Now Effected.—This state of affairs has been superseded by one in which a third, a public and impartial authority (1) takes cognizance of offenses against another individual as offenses against the commonwealth; (2) apprehends the supposed offender; (3) determines and applies an objective standard of judgment, the same for all, the law; (4) tries the supposed offender according to rules of procedure, including rules of evidence or proof, which are also publicly promulgated; and (5) takes upon itself the punishment of the offender, if found guilty. The history of this change, important and interesting as it is, does not belong here. We are concerned here only with the relation of public authority, public law, and public activity to the development of the freedom of the individual on one side and of his responsibility on the other.[206] We shall point out in a number of particulars that the evolution of freedom and responsibility in individuals has coincided with the evolution of a public and impartial authority.

1. Good and Evil as Quasi-Physical.—There are two alternatives in the judgment of good and evil. (1) They may be regarded as having moral significance, that is, as having a voluntary basis and origin. (2) Or they may be considered as substantial properties of things, as a sort of essence diffused through them, or as a kind of force resident in them, in virtue of which persons and things are noxious or helpful, malevolent or kindly. Savage tribes, for instance, cannot conceive either sickness or death as natural evils; they are attributed to the malicious magic of an enemy. Similarly the evil which follows from the acts of a man is treated as a sign of some metaphysical tendency inherent in him. Some men bring bad luck upon everything and everybody they have anything to do with. A curse is on their doings. No distinction is made between such evils and those which flow from intention and character. The notion of the moral or voluntary nature of good and evil hardly obtains. The quasi-physical view, bordering upon the magical, prevails. The result is that evil is thought of as a contagious matter, transmitted from generation to generation, from class or person to class or person; and as something to be got rid of, if at all, by devices which are equally physical. Natural evils, plagues, defeats, earthquakes, etc., are treated as quasi-moral, while moral evils are treated as more than half physical. Sins are infectious diseases, and natural diseases are malicious interferences of a human or divine enemy. Morals are materialized, and nature is moralized or demoralized.[207]

Now it is hardly necessary to point out the effect of such conceptions in restricting the freedom and responsibility of the individual person. Man is hemmed in as to thought and action on all sides by all kinds of mysterious forces working in unforeseeable ways. This is true enough in his best estate. When to this limitation is added a direction of energy into magical channels, away from those controllable sources of evil which reside in human disposition, the amount of effective freedom possible is slight. This same misplacing of liability holds men accountable for acts they have not committed, because some magic tendency for evil is imputed to them. Famine, pestilence, defeat in war are evils to be remedied by sacrifice of goods or persons or by ritualistic ceremonies; while the remediable causes of harm in human ignorance and negligence go without attention.

2. Accident and Intention.—Under such circumstances, little distinction can be made between the good and evil which an individual meant to do and that which he happened to do. The working presumption of society, up to a comparatively late stage of its history, was that every harmful consequence is an evidence of evil disposition in those who were in any way concerned. This limitation of freedom was accompanied by a counterpart limitation of responsibility. Where no harm actually resulted, there was thought to be no harmful intent. Animals and even inanimate objects which do injury are baleful things and come under disapprobation and penalty. Even in civilized Athens there was a survival of the practice of holding inanimate things liable. If a tree fell on a man and killed him, the tree was to be brought to trial, and after condemnation cast beyond the civic borders, i.e., outlawed.[208] Anyhow, the owner of an offending article was almost always penalized. Westermarck,[209] with reference to the guilt of animals, cites an instance, dated in 1457, "when a sow and her six young ones were tried on a charge of their having murdered and partly eaten a child; the sow, being found guilty, was condemned to death, the young pigs were acquitted on account of their youth and the bad example of their mother." When sticks, stones, and animals are held accountable for evil results, there is little chance of discriminating intent and accident or misadventure in the case of personal agents. "The devil himself knoweth not the intent, the 'thought' of man" was the mediÆval maxim; all that can be certain is that harm has come and the one who caused it must suffer; or else no overt harm has come and no one is to blame.[210] Harm has been done and any one concerned, even remotely, in the injurious situation, is ex officio guilty; it will not do to take chances. The remoteness of an implication which may involve liability is seen in the condition of English law in the thirteenth century: "At your request I accompany you when you are about your own affairs: my enemies fall upon and kill me: you must pay for my death. You take me to see a wild-beast show, or that interesting spectacle a madman: beast or madman kills me; you must pay. You hang up your sword; some one else knocks it down so that it cuts me; you must pay."[211] Only gradually did intent clearly evolve as the central element in an act, and thus lead to the idea of a voluntary or free act.

That the limitation upon the side of responsibility was equally great is obvious. If a man is held liable for what he did not and could not foresee or desire, there is no ground for his holding himself responsible for anticipating the consequences of his acts, and forming his plans according as he foresees. This comes out clearly in the obverse of what has just been said. If no harm results from a willful attempt to do evil, the individual is not blamed. He goes scot free. "An attempt to commit a crime is no crime."[212]

3. Character and Circumstances.—Even in law, to say nothing of personal moral judgments, we now almost as a matter of course take into account, in judging an agent's intent, both circumstances, and character as inferred from past behavior. We extend our view of consequences, taking into account in judging the moral quality of a particular deed, consequences its doer is habitually found to effect. We blame the individual less for a deed if we find it contrary to his habitual course. We blame him more, if we find he has a character given to that sort of thing. We take into account, in short, the permanent attitude and disposition of the agent. We also discriminate the conditions and consequences of a deed much more carefully. Self-defense, protection of others or of property, come in as "extenuating circumstances"; the degree of provocation, the presence of immediate impulsive fear or anger, as distinct from a definitely formed, long-cherished idea, are considered. The questions of first or of repeated offense, of prior criminality or good behavior, enter in. Questions of heredity, of early environment, of early education and opportunity are being brought to-day into account.

We are still very backward in this respect, both in personal and in public morals; in private judgment and in legal procedure and penalty. Only recently have we, for example, begun to treat juvenile delinquents in special ways; and the effort to carry appropriate methods further meets with strong opposition and the even stronger inertia of indifference. It is regarded by many good people as lowering the bars of responsibility to consider early training and opportunity, just as in its day it was so regarded to plead absence of intent in cases where evil had actually resulted. It is not "safe" to let any one off from the rigor of the law. The serious barrier, now as earlier, is upon the scientific or intellectual side. There was a time when it did not seem feasible to pass upon intent; it was hidden, known only to God. But we have now devised ways, adequate in principle, though faulty in detail, to judge immediate intent; similarly, with the growth of anthropology, psychology, statistics, and the resources of publicity in social science, we shall in time find it possible to consider the effects of heredity, early environment, and training upon character and so upon intent. We shall then regard present methods of judging intent to be almost as barbarous as we now consider the earlier disregard of accident and provocation. Above all we shall learn that increased, not relaxed responsibility, comes with every increase of discrimination of causes lying in character and conditions.[213]

4. Intellectual Incapacity and Thoughtlessness.—With increasing recognition of character as the crucial element in voluntary action, we now take into account such matters as age, idiocy, and insanity as factors of judgment. But this also has been a slow growth. If we take the one question of insanity, for example, in 1724 exculpation for harm resulting from a madman's acts required that the person excused "be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast." At the beginning of the nineteenth century, the excuse was no longer that of being such a raving lunatic as is here implied; but of knowing right and wrong from each other in the abstract. By a celebrated case in 1843, the rule was changed, in English law, to knowledge of the difference between right and wrong in the particular case. Further advance waits upon progress of science which will make it more possible to judge the specific mental condition of the person acting; and thus do away with the abuses of the present system which tend, on the one hand, to encourage the pleading of insanity where none may exist; and, on the other hand (by a rigid application of a technical rule), to condemn persons really irresponsible.[214] Popular judgment still inclines to impute clear and definite intention on the basis of results; and to ignore conditions of intellectual confusion and bewilderment, and justifies itself in its course on the ground that such is the only "safe" course.[215]

Responsibility for Thoughtlessness.—But the release from responsibility for deeds in which the doer is intellectually incapacitated, is met on the other side by holding individuals of normal mental constitution responsible for some consequences which were not thought of at all. We even hold men accountable for not thinking to do certain acts. The former are acts of heedlessness or carelessness, as when a mason on top of a building throws rubbish on to a street below which injures some one, without any thought on his part of this result, much less any deliberate desire to effect it. The latter are acts of negligence, as when, say, an engineer fails to note a certain signal. In such cases even when no harm results, we now hold the agent morally culpable. Similarly we blame children for not thinking of the consequences of their acts; we blame them for not thinking to do certain things at a certain time—to come home when told, and so on. This is not merely a matter of judgment by others. The more conscientious a person is, the more occasions he finds to judge himself with respect to results which happened because he did not think or deliberate or foresee at all—provided he has reason to believe he would have thought of the harmful results if he had been of a different character. Because we were absorbed in something else we did not think, and while, in the abstract, this something else may have been all right, in the concrete it may be proof of an unworthy character. The very fact that we permitted ourselves to become so absorbed that the thought of an engagement, or of an opportunity to help some friend whom we knew to be in need, did not occur to us, is evidence of a selfish, i.e., inconsiderate, character.

The case seems paradoxical and is crucial. Others hold us responsible because we were irresponsible in action and in order that we may become responsible. We blame ourselves precisely because we discover that an unconscious preference for a private or exclusive good led us to be careless of the good of others. The effect (if the regret is genuine, not simulated) is to develop a habit of greater thoughtfulness in the future. Less and less do men accept for others or for themselves ignorance as an excuse for bad consequences, when the ignorance itself flows from character. Our chief moral business is to become acquainted with consequences. Our moral character surely does not depend in this case, then, upon the fact that we had alternatives clearly in mind and chose the worse; the difficulty is that we had only one alternative in mind and did not consciously choose at all. Our freedom lies in the capacity to alter our mode of action, through having our ignorance enlightened by being held for the neglected consequences when brought to accountability by others, or by holding ourselves accountable in subsequent reflection. Cases of careless acts and of acts omitted through negligence are thus crucial for any theory of freedom and responsibility. Either we are all wrong in blaming ourselves or others in such cases, because there is no free or voluntary element in them; or else there is responsibility when deliberate comparison of alternatives and conscious preference are absent. There is responsibility for the absence of deliberation. Nature does not forbear to attach consequences to acts because of the ignorance of the one who does the deed. The evil results that follow in the wake of a thoughtless act are precisely the reminders that make one take thought the next time. Similarly, to be held liable by others or to take ourselves to task for forgetfulness, inconsiderateness, and negligence, is the way in which to build up conscientious foresight and deliberate choice. The increased complexity and danger of modern industrial activity, the menace of electric power, of high explosives, of railway trains and trolley cars, of powerful machines, have done much to quicken recognition that negligence may be criminal, and to reawaken the conviction of Greek thought that thoughtless ignorance, where knowledge is possible, is the worst of evils. The increased interdependence of men, through travel and transportation, collective methods of production, and crowding of population in cities, has widened the area of the harm likely to result from inconsiderate action, and has strengthened the belief that adequate thoughtfulness is possible only where there is sympathetic interest in others.

5. The Conflict of Form and Substance.—The technical forms of procedure concerned in establishing and remedying rights were, for long ages, more important than the substantial ends by which alone the forms may be justified. Any effort for a remedy was nullified if the minutiÆ of complicated formulÆ (largely magical or ritualistic in their origin) were deviated from. Almost any obligation might be escaped by some quirk or turn in some slight phrase or motion, without which no agreement was binding, so sacramental was the importance of the very words. In early days the rigidity of these semi-ritualistic performances doubtless served to check arbitrary and reckless acts, and to impress the sense of the value of a standard.[216] But they survived as "rudimentary organs" long after they had done their work in this respect; and after they had been eliminated from legal procedure they survived as habits of judging conduct.

Survivals of Spirit of Individualistic Litigation.—The fact that the procedure of justice originated as methods of supplying impartial umpires for conflicts waged between individuals, has had serious consequences. It has had indeed the desirable consequence of quickening men to the perception of their rights and to their obligation as social members to maintain them intact. But it has also had the undesirable result of limiting the function of the public interest to the somewhat negative one of securing fair play between contentious individuals. The battle is not now fought out with fists or spears or oaths or ordeals: but it is largely a battle of wits and of technical resources between the opposite parties and their lawyers, with the State acting the part of a benevolently neutral umpire. The ignorant, the poor, the foreign, and the merely honest are almost inevitably at a discount in this battle.[217] And, in any case, the technical aspect of justice, that is, the question of proper forms gets out of true perspective. The "legally-minded" man is likely to be one with whom technical precedents and rules are more important than the goods to be achieved and the evils to be avoided. With increase of publicity and scientific methods of determining and interpreting facts, and with a public and professional criticism which is impartial and wise, we may anticipate that the supremacy of the general good will be increasingly recognized in cases of litigation, and that the courts, as organs of public justice, will take a more active and substantial part in the management of all legal controversies.[218]

Legal and Moral.—But, at the best, definitions of rights and of remedial procedures only (1) lay down general, not individual conditions, and (2), so far as they are strict, register precedent and custom rather than anticipate the novel and variable. They can state what shall not be done. Except in special cases, they cannot state what shall be done, much less the spirit and disposition in which it shall be done. In their formulations, they present a sort of minimum limit of morality not to be overstepped by those inclined to ill. They throw little light on the positive capacities and responsibilities of those who are socially minded. They have a moral purpose: they free energy from the friction attendant upon vague, obscure, and uncertain situations, by enlightening men as to what they may do and how they may do it. But the exaggeration of form at the expense of the substantial end and good, leads to misplaced emphasis and false perspective. The rules are treated as ends; they are employed not to get insight into consequences, but as justifying, apart from consequences, certain acts. The would-be conscientious agent is led into considering goodness as a matter of obeying rules, not of fulfilling ends. The average individual conceives he has satisfied the requirements of morality when he has conformed to the average level of legal definition and prescription. Egoistic, self-seeking men regard their actions as sanctioned if they have not broken the laws; and decide this question by success in evading penalties. The intelligence that should go to employing the spirit of laws to enlighten behavior is spent in ingenious inventions for observing their letter. The "respectable" citizen of this type is one of the unsocialized forces that social reformers find among their most serious obstacles.

This identification of morality with the legal and jural leads to a reaction which is equally injurious: the complete separation of the legal and the moral, the former conceived as merely "outer," concerned entirely with acts, not at all with motive and character. The effect of this divorce is perhaps more serious upon the moral than upon the legal. The separation makes morals sentimental and whimsical, or else transcendental and esoteric. It leads to neglect of the social and institutional realities which form a world of action as surely as natural objects and energies form a physical world, and ends in the popular conception of morals as just a matter of "goodness" (the goody-goodiness) of individuals. One of the most fundamental of moral duties is that of making the legal order a more adequate expression of the common good.

Special Problems.—Civil Society thus imposes upon its members not only specific obligations, but it also imposes upon all who enjoy its benefits the supreme obligation of seeing that the civic order is itself intelligently just in its methods of procedure. The peculiar moral problems which men have to face as members of civil society change, of course, from time to time with change of conditions; among the more urgent of present problems, we may mention:

1. Reform of Criminal Procedure.—The negative side of morality is never so important as the positive, because the pathological cannot be as important as the physiological of which it is a disturbance and perversion. But no fair survey of our methods, either of locating criminality or of punishing it, can fail to note that they contain far too many survivals of barbarism. Compared with primitive times we have indeed won a precious conquest. Even as late as 1813, a proposal to change the penalty for stealing five shillings from death to transportation to a remote colony, was defeated in England.[219] But we are likely in flattering ourselves upon the progress made to overlook that which it remains to make. Our trials are technical rather than human: they assume that just about so much persistent criminality must persist in any case. They endeavor, in rather routine and perfunctory ways, to label this and that person as criminal in such and such degrees, or, by technical devices and resources, to acquit. In many American states, distrust of government, inherited from days of tyrannical monarchy or oligarchy, protects the accused in all sorts of ways. For fear the government will unjustly infringe upon the liberty of the individual, the latter is not only—as is just—regarded as innocent till proved guilty; but is provided with every possible technical advantage in rules of evidence, postponements and appeals, advantages backed up, in many cities, by association with political bosses which gives him a corrupt "pull."

On the other hand, there is as yet no general recognition of the possibility of an unbiased scientific investigation into all the antecedents (hereditary and environmental) of evildoers; an investigation which would connect the wrong done with the character of the individual committing it, and not merely with one of a number of technical degrees of crime, laid down in the statute books in the abstract, without reference to particular characters and circumstances. Thus while the evildoer has in one direction altogether too much of a chance to evade justice, he has in another direction a chance at only technical, rather than at moral, justice—justice as an individual human being. It is not possible to discuss here various methods which have been proposed for remedying these defects. But it is clearly the business of the more thoughtful members of society to consider the evils seriously and to interest themselves actively in their reform. We need, above all, a change in two respects: (a) recognition of the possibilities of new methods of judgment which the sciences of physiology, psychology, and sociology have brought about; and (b) surrender of that feudal conception according to which men are divided, as it were essentially, into two classes: one the criminal and the other the meritorious. We need to consider the ways in which the pressure and the opportunities of environment and education, of poverty and comfortable living, of extraneous suggestion and stimulation, make the differences between one man and another; and to recognize how fundamentally one human nature is at bottom. Juvenile courts, probation officers, detention officers, mark the beginnings of what is possible, but only the beginnings. For the most part crime is still treated sordidly and by routine, except when, being sensational, it is the occasion for a great battle of wits between keen prosecuting attorney and clever "criminal lawyer," with the world through the newspapers watching the display.

2. Reform of Punishment.—Emerson's bitter words are still too applicable. "Our distrust is very expensive. The money we spend for courts and prisons is very ill laid out. We make, by distrust, the thief and burglar and incendiary, and by our court and jail we keep him so."[220] Reformatories, whose purpose is change of disposition, not mere penalization, have been founded; but there are still many more prisons than reformatories. And, if it be argued that most criminals are so hardened in evil-doing that reformatories are of no use, the answer is twofold. We do not know, because we have never systematically and intelligently tried to find out; and, even if it were so, nothing is more illogical than to turn the unreformed criminal, at the end of a certain number of months or years, loose to prey again upon society. Either reform or else permanent segregation is the logical alternative. Indeterminate sentences, release on probation, discrimination of classes of offenders, separation of the first and more or less accidental and immature offender from the old and experienced hand, special matrons for women offenders, introduction of education and industrial training into penitentiaries, the finding of employment for those released—all mark improvements. They are, however, as yet inchoate. Intelligent members of society need to recognize their own responsibility for the promotion of such reforms and for the discovery of new ones.

3. Increase of Administrative Efficiency.—In the last one hundred years, society has rapidly grown in internal complexity. Commercial changes have brought about an intense concentration of population in cities; have promoted migratory travel and intercourse, with destruction of local ties; have developed world markets and collective but impersonal (corporate) production and distribution. Many new problems have been created, while at the same time many of the old agencies for maintaining order have been weakened or destroyed, especially such as were adapted to small groups with fixed habits. A great strain has thus been put upon the instrumentalities of justice. Pioneer conditions retarded in America the development of the problems incident upon industrial reconstruction. The possibility of moving on, of taking up new land, finding unutilized resources of forest and mine, the development of new professions, the growth of population with new needs to be met, stimulated and rewarded individual enterprise. Under such circumstances there could be no general demand for public agencies of inspection, supervision, and publicity. But the pioneer days of America are practically ended. American cities and states find themselves confronted with the same problems of public health, poverty and unemployment, congested population, traffic and transportation, charitable relief, tramps and vagabondage, and so forth, that have troubled older countries.

We face these problems, moreover, with traditions which are averse to "bureaucratic" administration and public "interference." Public regulation is regarded as a "paternalistic" survival, quite unsuited to a free and independent people. It would be foolish, indeed, to overlook or deny the great gains that have come from our American individualistic convictions: the quickening of private generosity, the growth of a generalized sense of noblesse oblige—of what every successful individual owes to his community; of personal initiative, self-reliance, and versatile "faculty"; of interest in all the voluntary agencies which by education and otherwise develop the individuality of every one; and of a demand for equality of opportunity, a fair chance, and a square deal for all. But it is certain that the country has reached a state of development, in which these individual achievements and possibilities require new civic and political agencies if they are to be maintained as realities. Individualism means inequity, harshness, and retrogression to barbarism (no matter under what veneer of display and luxury), unless it is a generalized individualism: an individualism which takes into account the real good and effective—not merely formal—freedom of every social member.

Hence the demand for civic organs—city, state, and federal,—of expert inquiry, inspection, and supervision with respect to a large number of interests which are too widespread and too intricate to be well cared for by private or voluntary initiative. The well-to-do in great cities may segregate themselves in the more healthful quarters; they may rely upon their automobiles for local transportation; they may secure pure milk and unadulterated foods from personal resources; they may, by their combined "pull," secure good schools, policing, lighting, and well-paved streets for their own localities. But the great masses are dependent upon public agencies for proper air, light, sanitary conditions of work and residence, cheap and effective transportation, pure food, decent educative and recreative facilities in schools, libraries, museums, parks.

The problems which fall to the lot of the proper organs of administrative inspection and supervision are essentially scientific problems, questions for expert intelligence conjoined with wide sympathy. In the true sense of the word political, they are political questions: that is, they relate to the welfare of society as an organized community of attainment and endeavor. In the cant sense of the term political, the sense of conventional party-issues and party-lines, they have no more to do with politics than have the multiplication table and the laws of hygiene. Yet they are at present almost hopelessly entangled with irrelevant "political" issues, and are almost hopelessly under the heel of party-politicians whose least knowledge is of the scientific questions involved, just as their least interest is for the human issues at stake. So far "civil service reform" has been mainly negative: a purging away of some of the grosser causes which have influenced appointments to office. But now there is needed a constructive reform of civil administration which will develop the agencies of inquiry, oversight, and publicity required by modern conditions; and which will necessitate the selection of public servants of scientifically equipped powers.

§ 3. POLITICAL RIGHTS AND OBLIGATIONS

No hard and fast line can be drawn between civil society and the State. By the State, however, we denote those conditions of social organization and regulation which are most fundamental and most general:—conditions which are summed up in and expressed through the general will as manifested in legislation and its execution. As a civil right is technically focused in the right to use the courts, "to sue and be sued," that is in the right to have other claims adjudicated and enforced by a public, impartial authority, so a political right is technically summed up in the power to vote—either to vote directly upon laws or to vote for those who make and carry out laws. To have the right in a legislative assembly to speak for or against a certain measure; to be able to say "yea" or "nay" upon a roll-call; to be able to put into a ballot-box a piece of paper with a number of names written thereon, are not acts which of themselves possess the inherent value of many of the most ordinary transactions of daily life. But the representative and potential significance of political rights exceeds that of any other class of rights. Suffrage stands for direct and active participation in the regulation of the terms upon which associated life shall be sustained, and the pursuit of the good carried on. Political freedom and responsibility express an individual's power and obligation to make effective all his other capacities by fixing the social conditions of their exercise.

Growth of Democracy.—The evolution of democratically regulated States, as distinct from those ordered in the interests of a small group, or of a special class, is the social counterpart of the development of a comprehensive and common good. Externally viewed, democracy is a piece of machinery, to be maintained or thrown away, like any other piece of machinery, on the basis of its economy and efficiency of working. Morally, it is the effective embodiment of the moral ideal of a good which consists in the development of all the social capacities of every individual member of society.

Present Problems: 1. Distrust of Government.—Present moral problems connected with political affairs have to do with safeguarding the democratic ideal against the influences which are always at work to undermine it, and with building up for it a more complete and extensive embodiment. The historic antecedent of our own governmental system was the exercise of a monopoly by a privileged class.[221] It became a democratic institution partly because the King, in order to secure the monopoly, had to concede and guarantee to the masses of the people certain rights as against the oligarchical interests which might rival his powers; and partly because the centralization of power, with the arbitrary despotism it created, called out protests which finally achieved the main popular liberties: safety of life and property from arbitrary forfeiture, arrest, or seizure by the sovereign; the rights of free assembly, petition, a free press, and of representation in the law-making body.

Upon its face, the struggle for individual liberty was a struggle against the overbearing menace of despotic rulers. This fact has survived in an attitude towards government which cripples its usefulness as an agency of the general will. Government, even in the most democratic countries, is still thought of as an external "ruler," operating from above, rather than as an organ by which people associated in pursuit of common ends can most effectively coÖperate for the realization of their own aims. Distrust of government was one of the chief traits of the situation in which the American nation was born. It is embodied not only in popular tradition, and party creeds, but in our organic laws, which contain many provisions expressly calculated to prevent the corporate social body from effecting its ends freely and easily through governmental agencies.[222]

There can be no doubt that the movement to restrict the functions of government, the laissez-faire movement, was in its time an important step in human freedom, because so much of governmental action was despotic in intention and stupid in execution. But it is also a mistake to continue to think of a government which is only the people associated for the assuring of their own ends as if it were the same sort of thing as a government which represented the will of an irresponsible class. The advance of means of publicity, and of natural and social science, provides not only protection against ignorant and unwise public action, but also constructive instrumentalities of intelligent administrative activities. One of the chief moral problems of the present day is, then, that of making governmental machinery such a prompt and flexible organ for expressing the common interest and purpose as will do away with that distrust of government which properly must endure so long as "government" is something imposed from above and exercised from without.

2. Indifference to Public Concerns.—The multiplication of private interests is a measure of social progress: it marks the multiplication of the sources and ingredients of happiness. But it also invites neglect of the fundamental general concerns which, seeming very remote, get pushed out of sight by the pressure of the nearer and more vivid personal interests. The great majority of men have their thoughts and feelings well occupied with their family and business affairs; with their clubs for recreation, their church associations, and so on. "Politics" becomes the trade of a class which is especially expert in the manipulation of their fellows and skilled in the "acceleration" of public opinion. "Politics" then gets a bad name, and the aloofness from public matters of those best fitted, theoretically, to participate in them is further promoted. The saying of Plato, twenty-five hundred years ago, that the penalty good men pay for not being interested in government is that they are then ruled by men worse than themselves, is verified in most of our American cities.

3. Corruption.—This indifference of the many, which throws the management of political affairs into the hands of a few, leads inevitably to corruption. At the best, government is administered by human beings possessed of ordinary human frailties and partialities; and, at the best, therefore, its ideal function of serving impartially the common good must be compromised in its execution. But the control of the inner machinery of governmental power by a few who can work in irresponsible secrecy because of the indifference and even contempt of the many, incites to deliberate perversion of public functions into private advantages. As embezzlement is appropriation of trust funds to private ends, so corruption, "graft," is prostitution of public resources, whether of power or of money, to personal or class interests. That a "public office is a public trust" is at once an axiom of political ethics and a principle most difficult to realize.

In our own day, a special field has been opened within which corruption may flourish, in the development of public utility companies. Railways, city transportation systems, telegraph and telephone systems, the distribution of water and light, require public franchises, for they either employ public highways or they call upon the State to exercise its power of eminent domain. These enterprises can be carried on efficiently and economically only as they are either monopolies, or quasi-monopolies. All modern life, however, is completely bound up with and dependent upon facilities of communication, intercourse, and distribution. Power to control the various public-service corporations carries with it, therefore, power to control and to tax all industries, power to build up and cast down communities, companies, and individuals, to an extent which might well have been envied by royal houses of the past. It becomes then a very special object for great corporations to control the agencies of legislation and administration; and it becomes a very special object for party leaders and bosses to get control of party machinery in order to act as brokers in franchises and in special favors—sometimes directly for money, sometimes for the perpetuation and extension of their own power and influence, sometimes for the success, through influential support and contribution to party funds, of the national party with which they are identified.

4. Reforms in Party Machinery.—The last decade or so of our history has been rife with schemes to improve political conditions. It has become clear, among other things, that our national growth has carried with it the development of secondary political agencies, not contemplated by the framers of our constitutions, agencies which have become primary in practical matters. These agencies are the "machines" of political parties, with their hierarchical gradation of bosses from national to ward rulers, bosses who are in close touch with great business interests at one extreme, and with those who pander to the vices of the community (gambling, drink, and prostitution) at the other; parties with their committees, conventions, primaries, caucuses, party-funds, societies, meetings, and all sorts of devices for holding together and exciting masses of men to more or less blind acquiescence.

It is not necessary to point out the advantages which parties have subserved in concentrating and defining public opinion and responsibility in large issues; nor to dwell upon their value in counteracting tendencies which break up and divide men into a multitude of small groups having little in common with one another. But behind these advantages a vast number of abuses have sheltered themselves. Recent legislation and recent discussion have shown a marked tendency formally to recognize the part actually played by party machinery in the conduct of the State, and to take measures to make this factor more responsible in its exercise. Since these measures directly affect the conditions under which the government as the organ of the general will does its work of securing the fundamental conditions of equal opportunity for all, they have a direct moral import. Such questions as the Australian ballot, the recognition of party emblems and party groupings of names; laws for direct primary nominations; the registering of voters for primary as well as for final elections; legal control of party committees and party conventions; publicity of accounts as to the reception and use of party funds; forbidding of contributions by corporations, are thus as distinctly moral questions as are bribery and ballot-box stuffing.

5. Reforms in Governmental Machinery.—Questions that concern the respective advantages of written versus unwritten constitutions are in their present state problems of technical political science rather than of morals. But there are problems, growing out of the fact that for the most part American constitutions were written and adopted under conditions radically unlike those of the present, which have a direct ethical import. As already noted, our constitutions are full of evidences of distrust of popular coÖperative action. They did not and could not foresee the direction of industrial development, the increased complexity of social life, nor the expansion of national territory. Many measures which have proved indispensable have had therefore to be as it were smuggled in; they have been justified by "legal fictions" and by interpretations which have stretched the original text to uses undreamed of. At the same time, the courts, which are the most technical and legal of our political organs, are supreme masters over the legislative branch, the most popular and general. The distribution of functions between the states and the nation is curiously ill-adapted to present conditions (as the discussions regarding railway regulation indicate); and the distribution of powers between the state and its municipalities is hardly less so, resting in theory upon the idea of local self-government, and in practice doing almost everything possible to discourage responsible initiative for the conduct of their own affairs on the part of municipalities.

These conditions have naturally brought forth a large crop of suggestions for reforms. It is not intended to discuss them here, but the more important of them, so far as involving moral questions, may be briefly noted. The proposals termed the initiative and the referendum and the "recall" (this last intended to enable the people to withdraw from office any one with whose conduct of affairs they are dissatisfied) are clearly intended to make the ideal of democratic control more effective in practice. Proposals for limited or complete woman's suffrage call attention to the fact that one-half of the citizenship does the political thinking for the other half, and emphasize the difficulty under such conditions of getting a comprehensive social standpoint (which, as we have already seen, is the sympathetic and reasonable standpoint) from which to judge social issues. Many sporadic propositions from this and that quarter indicate a desire to revise constitutions so as to temper their cast-iron quality and increase their flexible adaptation to the present popular will, and so as to emancipate local communities from subjection to State legislatures in such a way as to give them greater autonomy and hence greater responsibility, in the management of their own corporate affairs. It is not the arguments pro and con that we are here concerned with; but we are interested to point out that moral issues are involved in the settlement of these questions. It may, moreover, be noted that dividing lines in the discussion are generally drawn, consciously or unconsciously, on the basis of the degree of faith which exists in the democratic principle and ideal, as against the class idea in some of its many forms.

6. Constructive Social Legislation.—The rapid change of economic methods, the accumulation and concentration of wealth, the aggregation of capital and labor into distinct bodies of corporations and trusts, on one side, and federated labor unions, on the other; the development of collective agencies of production and distribution, have brought to the focus of public attention a large number of proposals for new legislation, almost all of which have a direct moral import. These matters are discussed at length in subsequent chapters (chs. xxii.-xxv.); and so are passed over here with the reminder that, while on one side they are questions of the ethics of industry, they are also questions of the right and wrong use of political power and authority. We may also note that the theoretical principle at issue, the extension versus the restriction of governmental agencies, so far as it is not simply a question of what is expedient under the given circumstances, is essentially a question of a generalized versus a partial individualism. The democratic movement of emancipation of personal capacities, of securing to each individual an effective right to count in the order and movement of society as a whole (that is, in the common good), has gone far enough to secure to many, more favored than others, peculiar powers and possessions. It is part of the irony of the situation that such now oppose efforts to secure equality of opportunity to all on the ground that these efforts would effect an invasion of individual liberties and rights: i.e., of privileges based on inequality. It requires perhaps a peculiarly sympathetic imagination to see that the question really involved is not one of magnifying the powers of the State against individuals, but is one of making individual liberty a more extensive and equitable matter.

7. The International Problem.—The development of national States marks a tremendous step forward in the realization of the principle of a truly inclusive common good. But it cannot be the final step. Just as clans, sects, gangs, etc., are intensely sympathetic within and intensely exclusive and jealous without, so States are still arrayed against States, with patriotism, loyalty, as an internal virtue, and the distrust and hatred of divisive hostility as the counterpart vice. The idea of humanity in the abstract has been attained as a moral ideal. But the political organization of this conception, its embodiment in law and administrative agencies, has not been achieved. International law, arbitration treaties, and even a court like the Hague tribunal, whose power is sentimental rather than political, mark steps forward. Nothing could be more absurd, from the historic point of view, than to regard the conception of an international State of federated humanity, with its own laws and its own courts and its own rules for adjudicating disputes, as a mere dream, an illusion of sentimental hope. It is a very slight step to take forward compared with that which has substituted the authority of national States for the conflict of isolated clans and local communities; or with that which has substituted a publicly administered justice for the rÉgime of private war and retaliation. The argument for the necessity (short of the attainment of a federated international State with universal authority and policing of the seas) of preparing in peace by enlarged armies and navies for the possibility of war, must be offset at least by recognition that the possession of irresponsible power is always a direct temptation to its irresponsible use. The argument that war is necessary to prevent moral degeneration of individuals may, under present conditions, where every day brings its fresh challenge to civic initiative, courage, and vigor, be dismissed as unmitigated nonsense.

§ 4. THE MORAL CRITERION OF POLITICAL ACTIVITY

The moral criterion by which to try social institutions and political measures may be summed up as follows: The test is whether a given custom or law sets free individual capacities in such a way as to make them available for the development of the general happiness or the common good. This formula states the test with the emphasis falling upon the side of the individual. It may be stated from the side of associated life as follows: The test is whether the general, the public, organization and order are promoted in such a way as to equalize opportunity for all.

Comparison with the Individualistic Formula.—The formula of the individualistic school (in the narrow sense of that term—the laissez-faire school) reads: The moral end of political institutions and measures is the maximum possible freedom of the individual consistent with his not interfering with like freedom on the part of other individuals. It is quite possible to interpret this formula in such a way as to make it equivalent to that just given. But it is not employed in that sense by those who advance it. An illustration will bring out the difference. Imagine one hundred workingmen banded together in a desire to improve their standard of living by securing higher wages, shorter hours, and more sanitary conditions of work. Imagine one hundred other men who, because they have no families to support, no children to educate, or because they do not care about their standard of life, are desirous of replacing the first hundred at lower wages, and upon conditions generally more favorable to the employer of labor. It is quite clear that in offering themselves and crowding out the others, they are not interfering with the like freedom on the part of others. The men already engaged are "free" to work for lower wages and longer time, if they want to. But it is equally certain that they are interfering with the real freedom of the others: that is, with the effective expression of their whole body of activities.

The formula of "like freedom" artificially isolates some one power, takes that in the abstract, and then inquires whether it is interfered with. The one truly moral question is what relation this particular power, say the power to do a certain work for a certain reward, sustains to all the other desires, purposes, and interests of the individual. How are they affected by the way in which some one activity is exercised? It is in them that the concrete freedom of the man resides. We do not know whether the freedom of a man is interfered with or is assisted until we have taken into account his whole system of capacities and activities. The maximum freedom of one individual consistent with equal concrete or total freedom of others, would indeed represent a high moral ideal. But the individualistic formula is condemned by the fact that it has in mind only an abstract, mechanical, external, and hence formal freedom.

Comparison with the Collectivistic Formula.—There is a rival formula which may be summed up as the subordination of private or individual good to the public or general good: the subordination of the good of the part to the good of the whole. This notion also may be interpreted in a way which renders it identical with our own criterion. But it is usually not so intended. It tends to emphasize quantitative and mechanical considerations. The individualistic formula tends in practice to emphasize the freedom of the man who has power at the expense of his neighbor weaker in health, in intellectual ability, in worldly goods, and in social influence. The collectivistic formula tends to set up a static social whole and to prevent the variations of individual initiative which are necessary to progress. An individual variation may involve opposition, not conformity or subordination, to the existing social good taken statically; and yet may be the sole means by which the existing State is to progress. Minorities are not always right; but every advance in right begins in a minority of one, when some individual conceives a project which is at variance with the social good as it has been established.

A true public or social good will accordingly not subordinate individual variations, but will encourage individual experimentation in new ideas and new projects, endeavoring only to see that they are put into execution under conditions which make for securing responsibility for their consequences. A just social order promotes in all its members habits of criticizing its attained goods and habits of projecting schemes of new goods. It does not aim at intellectual and moral subordination. Every form of social life contains survivals of the past which need to be reorganized. The struggle of some individuals against the existing subordination of their good to the good of the whole is the method of the reorganization of the whole in the direction of a more generally distributed good. Not order, but orderly progress, represents the social ideal.

Green, Principles of Political Obligation, 1888; Ritchie, Principles of State Interference, 1891, Natural Rights, 1895; Lioy, Philosophy of Right, 2 vols., 1901; Willoughby, An Examination of the Nature of the State, 1896; Wilson, The State, 1889; Donisthorpe, Individualism, 1889; Giddings, Democracy and Empire, 1900; Mulford, The Nation, 1882; Spencer, Principles of Sociology, Vol. II., Part V., 1882, on Political Institutions; Bentham, Fragment on Government, 1776; Mill, Considerations on Representative Government, 1861, On Liberty, 1859, and The Subjection of Women, 1859; Austin, Jurisprudence, 2 vols., 4th ed., 1873; Hadley, The Relations between Freedom and Responsibility in the Evolution of Democratic Government, 1903; Pollock, Expansion of the Common Law, 1904; Hall, Crime in Its Relations to Social Progress, 1901; Philanthropy and Social Progress, Seven Essays, 1893; Stephen (J. F.), Liberty, Equality, Fraternity, 1873 (a criticism of Mill's Liberty); Tufts, Some Contributions of Psychology to the Conception of Justice, Philosophical Review, Vol. XV., p. 361.