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1 The Modern State in which the elective principle has
hardly any counterpoise develops to the most exuberant pro-
portions the abuses of patronage, as regards the army, in the
matter of leave, of permits, of exemptions from service, and so
on. The technical chiefs have the greatest difficulty in resisting
the torrent of requests from senators, deputies, mayors, &c., by
which they are overwhelmed. Ministers, having neither
stability nor independence, are generally more or less forced to
lend themselves to this progressive disorganisation.



THE MODERN S TA TE. 169

how to quietly conceive and execute great and far-
reaching designs.

Others find their consolation in the hope that the
conditions of humanity will suddenly change. We
know that it has been prone to warfare during the
forty or fifty centuries of its conscious existence ;
yet, as if the laws of habit did not exist, it is all in a
moment to turn pacific for ever. The old saying
Homo homini lupus is to be transformed suddenly
and without transition into Homo homini ovis.

This sapient foresight looks forward, one must
suppose, into the future over a whole succession of
centuries. For whatever anyone may say, occasions
of quarrel do still survive among modern nations,
frontier questions, half-understood trade-disputes,
questions of the infiltration of strangers from one
country into another, and of the regulations under
which they are placed, questions of unequal density
of population and of differences of wealth in different
territories. 1

1 These two last questions may in the long run become ex-
ceedingly acute. Wealthy nations claim the right to harass and



170 THE MODERN STATE.

Then, even within the State, the growing appetite
of the various social classes, their ambitions for a
broad and leisured life, the jealousies that power
excites, here are sufficient reasons it would seem for
not regarding as superannuated the military apparatus
whose maintenance and reinforcement have long been
considered as the principal function of the State.

Security for individuals and for their rights stands
only in the second rank, after security for the nation
itself. This service has attained a singular develop-
ment among modern nations. It is of infinitely wider
extent than one would at first sight suppose. It is
constantly growing in intensity and in precision : and
moreover, it is susceptible of infinite variety.

obstruct immigration which comes to them from poor countries,
to levy taxes on strangers, to subject them to more or less
vexatious formalities. Herein lies a serious peril, which will
take shape especially on the day when, the new world being
more densely populated, a larger proportion of the surplus of
prolific countries will pass over to rich countries where the
population is less dense. Any attempt to hinder this infiltration
would excite the danger of a renewal of the ancient migrations
consisting of large masses of people bearing arms. And the
same, if a rich country is unable by good treatment and
naturalisation to assimilate the poor foreigners whom it receives
into its midst. Motives for quarrels abound in this direction,



THE MODERN STATE. 171

In the matter of intensity the following figures
will serve to show the diversity in the efforts made
at different times. In the middle of the sixteenth
century, in 1539, the Watch in Paris consisted of one
company, comprising twenty mounted sergeants, and
forty on foot. Under Henry II., in 1559, it had some-
what developed, and it numbered 240 men, 32 of
them mounted. Under Colbert, it consisted of 120
horse and 160 foot. Under Louis XV., in 1771, the
number of the former rose to 170, and of the latter to
870. To-day, according to the accounts of the city of
Paris, the various services of municipal security
occupy more than 10,000 men, as protectors of the
peace, municipal guards, fire-men, etc. This is eleven
times the number that was employed at the end of
the eighteenth century : the population, it is true,
having increased rather more than fourfold during
that period.

The economic law that with the growth of popula-
tion every kind of service becomes less costly here
fails to apply. It has been kept in check by the
operation of two other laws : one, that the larger any



172 THE MODERN STATE.

human agglomeration becomes, the greater are the
temptations to crimes and misdemeanours, and the
greater the facilities for accomplishing them : the
other, that the more a nation becomes civilised and
polished, the more exacting it becomes in its refine-
ments, growing irritable at every annoyance, every
obstacle, every hindrance, which primitive people
would endure with equanimity.

The service of security has also increased greatly
in variety. It extends to a number of objects be-
sides those of the immediate protection of person
and property. It often takes preventive measures,
as when it endeavours to avert such common dangers
as epidemics : it takes precautions of all kinds. A
great deal might be said on this subject, some nations
tending to err on the side of negligence, some of
excessive interference, by regulations based on in-
complete observations, or on too hasty generalisation.
But this would land us in an infinite mass of detail.
We shall find occasion later on to revert to some of
the mistakes or some of the abuses of the State in
reference to this, both as central and as municipal



THE MODERN STA TE. 173

authority. The function of general security which is
laid upon the State involves in its application pro-
blems whose solution is a singularly delicate and
difficult matter : such as the penitentiary regulations,
or the transportation of criminals.

Since we have abandoned the practical savagery of
the ancient civilisations which went to work in the
shortest manner, and either killed their criminals or
shut them up without taking any further trouble
about them, the State finds itself face to face with
the most complex and the most embarrassing ques-
tions. In Morocco even now, and in most Mussulman
countries, criminals, if they are not beheaded, are
thrown into prison, and in the pestilent gaols where
they are confined the State does not even undertake
to nourish them, this being left to the care of their
family: in the same country also and in others far
distant, such as China, they are often left at liberty
after having been deprived of a limb, or they are
laden with fetters or put in a wooden collar, and so
left to beg, being incapable of doing harm, but also
unable to work.



174 THE MODERN STATE.

Our civilised societies, moved by a high sense of
humanity, seek to treat criminals charitably, to
provide suitably for their wants, to give them
work, even to improve them ; and in doing so, they
assume, and rightly, for it is to the honour of our
civilisation, a most delicate task. Yet they give
the matter for the most part but a divided atten-
tion, being absorbed but too frequently in other
matters which are really less within their com-
petence.

It is evident, therefore, how greatly the service of
security, which is incumbent on the State, has de-
veloped, not only in the course of ten or twenty
centuries, but even within the last fifty years.
Taking as our type the nation which has long en-
joyed the reputation of being the most economical
of any, I mean Great Britain, we find there that
the expenses of the magistracy, police, and prisons
(law and justice) took from the central Government,
in 1817, only 200,000, and in 1837 not more than
340,000; but, in 1857, we find them suddenly
rising to 2,900,000, then in 1867 to 3,200,000,



THE MODERN STATE. 175

in 1877 to 4,900,000, and finally in round numbers
to 8,000,000 in 1887.

There are some indications, moreover, which would
lead us to suppose that this service of security
which has gained so much in extent and in in-
tensity among modern nations, is, in some respects,
in a diseased condition, and subject to attacks which
might come to be serious; that we are, in fact, in
some sense in danger of reverting to primitive
barbarism.

What, for instance, would Richelieu say, who so
sternly proscribed duels, if coming to life again he
could contemplate his successor, the actual first
Minister, and ex-Minister of War, in the act of
cutting his own throat, under the complaisant eye
of the Chief Director of Public Security, who is
keeping a watch to avoid the police ?

What, again, would our ancient jurisconsults say
if they could witness all these extraordinary ac-
quittals of people who kill or wound each other
under the pretext that in the capacity of husbands,
lovers, or rivals, or even having some other motive



176 THE MODERN STATE.

N

of spite or hatred, their quarrels elude the justice
of men ?

What would they think of the theory that any
guilty person, if he be a sick man, has a right to
interest and care, and not to punishment?

What idea would our ancient administrators form
of our progress if they could see in every crowd
and every street-brawl revolvers brought out of
the pocket, brandished threateningly, or even used,
thus clearly evidencing the fact that whole classes
of our citizens are secretly armed, which is, perhaps,
worse than being so openly ? Our civilisation,
which has much cause for pride, has much also for
modesty: civilised man, even in the West, on the
very frequent occasions when he forgets himself,
shows unmistakable traces of the savage.

Passing from town to country, we find that maraud-
ing goes on with impunity if it is not connived
at, almost tolerated even, showing in any case that
from the point of view of purely material security,
we are far from having reached perfection.

Regarded from this standpoint, the Modern State,



THE MODERN STATE. 177

fast bound in electoral bondage, bowed down be-
neath the perpetual electoral yoke, enjoys but a
moderate degree of liberty and freedom of move-
ment. This is, however, a secondary evil, and one
to which, however vexatious, we can afford to
resign ourselves, for it does not very deeply affect
the social body.



CHAPTER III.

The State the Organ of Right CJiaracter and
Limits of this Function.

THE State is par excellence the determiner of judicial rights and
responsibilities Mistakes of most politicians and writers as
to the nature of this mission The State does not create
Right The ancient conception of law : a durable fixed rule,
in contra-distinction to an arbitrary rule The theory of
Bossuet and Fe"uelon less false than that of Bentham The
law creates no right : it recognises, defines, and sanctions
right Right is of spontaneous origin, like language and like
barter Custom precedes written right Even when written,
right is always in a condition of moment, jurisprudence being
ever newly inspired by new usages and new necessities The
legislator comes last to sanction and specify Genesis of
certain rights : the right of property How property in
the house and the enclosure preceded property in arable
land How the inequality of personal wealth has been the
origin of the inequality of funded property The obscure
date of the transformation of collective into private property
proves that it was not law which created the right of property
Everywhere the fact, instinctive and unconscious, has pre-
ceded the law Instance of literary and artistic property and
of property in inventions Proof that these rights existed
before all law, only their existence was trammelled Many
178



THE MODERN STATE. 179

natural rights, such as that of lending at interest, have had
to struggle against the legislator for a succession of centuries,
and have ultimately triumphed over his obstinate resistance
Necessity of bringing the legislator into a more modest
frame of mind Montesquieu's admirable definition of law
Refutation of objections on this score There is an irony
in the nature of things which mocks ab the legislator
Laws of succession, of taxation, of maximum rates, of interest
and price Presumption of the Modern State and of per-
manent Parliaments Social plasticity attenuates the effects
of legislative fancies.

ERRORS concerning the mission of the State and
the spirit in which it ought to set about fulfilling
this mission may have the very gravest results.
Justice is intimately connected with security, but
is distinct from it.

The State, as we have said, is par excellence the
determiner of judicial rights and responsibilities :
this is the highest and most intellectual function
that has fallen to its share.

It is very important that we should be quite clear
as to the character and limits of this mission.
Most writers conceive of it quite wrongly : most
States carry it into execution more strongly still.

The question is, What does the State really do



i8o THE MODERN STA TE.

when it enacts a law regulating the relations of
civil or commercial life ? Does it act as an omni-
potent infallible being, creating a right ? Certain
theologians teach that evil is what is contrary to the
will of God. Is injustice simply what is contrary
to the will of the State, and justice all that is in
conformity to this will ? This style of reasoning
is contrary to the nature of things, to the nature
of man, to all the historic development of human
societies.

It is very necessary to study by which means right
was constituted.

Writers both ancient and modern, down to the end
of the seventeenth century, conceived of law mainly
as a fixed rule, if not immutable, at least durable,
forming the opposite of what is arbitrary. Thus
Bossuet described a State " where all are subject to
the law, and to nothing but the law, where the law
is more powerful than men." Fe'uelon's " Salente "
abounds in expressions of reverence for the laws thus
conceived of, which dominate kings as well as
peoples. Thanks to these permanent rules, citizens



THE MODERN STATE. 181

or subjects could enjoy certainty in their sphere of
action. Whatever fancies might seize their sovereigns
or their administrators, they kept sight of certain
rights which must be preserved to them, certain
categories of acts which it was impossible to pro-
hibit.

No doubt, this conception of law is wanting in pre-
cision and clearness. It is silent as to the question
of its origin. But for all that, it contains much more
truth than the conception of many modern writers
and theorists, Bentham among the rest. Did not
Bentham write that Government fulfilled its part " in
creating rights which it confers on individuals, rights
of security for the person, of protection for their
honour, rights of property, etc. " ? Even the views of
Bossuet and Feuelon, however incomplete, were
worth a thousand times more than Bentham's empiri-
cism. Many jurisconsults go on repeating to this
day the absurdity that law creates property. They
are setting a monstrous kind of divine right of the
people, or rather of the variable majority of the
people, which is far more dangerous, because its pre-



182 THE MODERN STATE.



tentions are more absolute, than the ancient divine
right of kings.

A careful analysis will show that law creates no
right. Law recognises right, it defines it, it sanctions
it, it gives it a more precise content; above all, it
regulates its exercise, and its relation to other
rights.

Tin Aufang War die That! says Faust in his
monologue. We find at the beginning an act, an
instinctive act, a repetition of more or less uniform
acts, which constitutes a series, as it develops and
becomes more precise. These acts are only renewed,
perpetuated, extended, if they prove to be in harmony
with the necessities of human life, individual and
social.

Right is of spontaneous growth, from the develop-
ment of successive embryos, just as much as was
language, or barter.

Language, even syntax, preceded the grammarians ;
barter, in all its applications, came before the econo-
mists. If humanity had to await for its develop-
ment, the vacillating, uncertain, contradictory



THE MODERN STATE. 183

decisions of the reason, once arrived at a reasoning
level, it would hardly, even after all these centuries,
have risen above the level of animalism.

Custom, though it does not create right, is the first
to give it recognition and sanction. Everywhere
unwritten and unformulated right has preceded
written right. The first legislators were merely in
some sort scribes who collected and set in order the
customs which had gradually grown out of popular
sentiment, or rather out of the necessity of things.
They always refer back to the mores majorum. The
idea of innovating does not enter their minds. The
famous word Reform, which turns so many heads
now-a-days, is unknown to them.

Once fixed by writing, in a clear and defined text,
right is nevertheless not stationary, but always
moving and developing. But here again, a searching
analysis shows that initiative does not come from the
legislator. We find everywhere a species of prae-
torian right ; jurisprudence, gradually superimposing
itself on the written right, alters, corrects, and
amplifies it. This, which I have called praetorian



J8 4 THE MODERN STA TE

right, is the gradual application of the rules which
have been rendered necessary by transformations of
existing conditions : these applications being called
forth by certain particular cases, which are either in
themselves new, or are produced by modifications in
the circumstances of the social medium. Even this
praetorian right scarcely does more than copy pre-
established customs and usages ; the legislator comes
in as the final stage to give it the supreme sanction
of law.

Examine, if you will, the genesis of some of our
rights, and you will see how false is the notion that
they are created by law. It has been said, for instance,
that the right of property was the creation of law.
There was never a more preposterous theory, or one
more at variance with history.

In my work on Collectivism I have shown through
how many struggles, and with how much hesitation
and difficulty, the right of private property emerged
out of collective property. 1 From the time when

1 In my work entitled Collectivism, A Critical Examination of
the New Socialism, I have given a lengthened explanation of



THE MODERN STATE. 185

any people passes out from the pastoral into the
agricultural stage, they begin to have fixed dwellings.
Every household owns its hut or house, and often a
small enclosure adjacent to it. This primitive form
of property is suggested to man by his own nature,
and carries with it for him its own warrant and
recommendation. For, by nature, he abhors pro-
miscuity.

Outside this primitive house and its enclosure all
the remaining territory is common to all. But it
consists of two distinct portions : that which sur-
rounds the village and which is set aside for cultiva-
tion, and the more distant portion which remains
uncultivated, or is only used for pasture.

Of these two portions the first is certainly collec-
tive property, but it is subject to division. It is
portioned out by lots among the inhabitants at first,



the origin and constitution of property among different peoples.
In my Short Sketch of Political Economy, I have further shown
how new rights of property spring up, as it were, naturally, vested
in immaterial things, such as trade-marks, literary productions,
etc. ; and this the more constantly in proportion as civilisation
rises to higher levels of perfection.



i86 THE MODERN STATE.

once a year, but subsequently at longer and longer
intervals. The tendency to give a longer and longer
duration to the precarious tenure of these lots, by
placing the divisions at longer intervals apart, arises
from the necessary endeavour after improved cultiva-
tion. It is impossible, within the space of one year,
to give much dressing to the ground ; in two years
more can be done in this way, and still more in three
or four. This is how it comes to pass that in the
Russian mir the division is often not made more
frequently than every eighteen years. All the
portions are at first equal, and drawn by lot. But
inequalities in the means of cultivation among the
various inhabitants soon make themselves felt. Here
is a man eager and strenuous in labour, clever and
foreseeing in mind ; he naturally reaps good harvests,
lays by reserves of corn and forage, keeps and feeds
his animals well. Here is another, who is indolent,
and lives only from day to day ; he soon has not even
corn for sowing, his beasts die, or otherwise disappear,
he finds himself without the means of cultivation.
Of what use is his share to him if he cannot cultivate



THE MODERN STATE. 187

it ? He finds himself compelled to hand over the
enjoyment of it to his neighbour, and, further, to
deliver up his own person for hire. Later on, these
arrangements receive the sanction of custom, and it
is decided that those who have not sufficient means
of cultivation are not to be admitted to a share in the
division.

It is thus that inequality of personal property,
arising from labour and saving, determines, in the
long run, inequality of real property. Gradually
there arise such differences as constitute what the
peasants of the Russian mir term " strong families "
and " weak families." The strong families go on
increasing their share, the weak ultimately find them-
selves deprived of it altogether ; but they have only
been disinherited because they have proved them-
selves incapable of turning to account their share in
the collective heritage. These facts take many
generations for their accomplishment, their consolida-
tion, and their generalisation. The distribution is
less and less frequently carried out, and operates
among a more and more restricted number of families;



188 THE MODERN STATE.

eventually it disappears altogether, leaving some
taxes or dues by way of compensation.

The date of these transformations still remains in
obscurity, precisely because, as a rule, they have
never found a place in any written legal text.

In the other portions of the collective domain,
which is that at some distance removed from the
village, private property is constituted by analogous
processes. A few enterprising men take some portion
of this surplus territory none saying them nay,
since it is to no one's interest to oppose them they
work it, fertilize it, enclose it. Their example is
followed by others. Everyone proHts by it, even
these weak families of which I spoke, who, having
forfeited their own instruments of labour, are glad to
let out their services on hire, and who obtain a more
assured and more considerable wage in proportion as
production increases.

We have unmistakable warrant for assigning this
genesis to private property, not only in the evidence
afforded by careful study of the old texts and
charters of the Middle Ages, but still more in the



THE MODERN STATE. 189

consideration of what has passed tinder the very eye
of England in many districts of India, and of the
actual process of evolution going on to-day in the
Russian mir and the Javanese dessa (or collective
system).

Everywhere the act, instinctive, unconscious,
gradually generalised, precedes the law.

Other instances may be multiplied without diffi-
culty. Literary or artistic property, and property in
inventions, must surely, according to many superficial
observers, be the absolute creations of law, for with-
out it they would never have existed. But this is not
so; they would all assuredly have come into existence,
because they are all in harmony with the nature of
things; only, their exercise would have been very
much hampered.

An author is free to dispose of his works and has
a chance of, at any rate, some degree of success in
doing so, even if the law has not stepped in to decree
that he may sell to whomsoever he pleases. In the
last century and in the century before that, an author
of repute could generally sell his manuscripts to a



THE MODERN STATE.



library for some 50 or 100, or more. The library
would print it quietly, and striking off a number
of copies, would lay it before the public. Other
libraries, of course, could then copy it without incur-
ring any penalty from the law. But the original
holder of the manuscript had an advantage over all
the rest, an advantage of several months (for it takes
time to publish a book), and further, the later comers
would, no doubt, hesitate before going to any great
expense, except in the case of particularly choice
books ; for the first competitor and the one who had
treated with the author would have exhausted the


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Online LibraryPaul Leroy-BeaulieuThe modern state in relation to society and the individual; → online text (page 9 of 11)