It would have several uses -- one of them relevant to the truth above pointed out. Such a presentation would make clear how that identity of governmental ethics with military ethics which necessarily exists during primitive times, when the army is simply the mobilized society and the society is the quiescent army, continues through long stages, and even now affects in great degrees our law-proceedings and our daily lives. Having, for instance, shown that in numerous savage tribes the judicial function of the chief does not exist, or is nominal, and that very generally during early stages of European civilization, each man had to defend himself and rectify his private wrongs as best he might -- having shown that in medieval times the right of private war among members of the military order was brought to an end, not because the head ruler thought it his duty to arbitrate, but because private wars interfered with the efficiency of his army in public wars having shown that the administration of justice displayed through subsequent ages a large amount of its primitive nature, in trial by battle carried on before the king or his deputy as umpire, and which, among ourselves, continued nominally to be an alternative form of trial down to 1819; it might then be pointed out that even now there survives trial by battle under another form: counsel being the champions and purses the weapons. In civil cases, the ruling agency cares scarcely more than of old about rectifying the wrongs of the injured; but, practically, its deputy does little else than to enforce the rules of the fight: the result being less a question of equity than a question of pecuniary ability and forensic skill. Nay, so little concern for the administration of justice is shown by the ruling agency, that when, by legal conflict carried on in the presence of its deputy, the combatants have been pecuniarily bled even to the extent of producing prostration, and when an appeal being made by one of them the decision is reversed, the beaten combatant is made to pay for the blunders of the deputy, or of a preceding deputy; and not unfrequently the wronged man, who sought protection or restitution, is taken out of court pecuniarily dead.
Adequately done, such a portrayal of governmental misdeeds of commission and omission, proving that the partially-surviving code of ethics arising in, and proper to, a state of war, still vitiates governmental action, might greatly moderate the hopes of those who are anxious to extend governmental control. After observing that along with the still-manifest traits of that primitive political structure which chronic militancy produces, there goes a still-manifest survival of its primitive principles;the reformer and the philanthropist might be less sanguine in their anticipations of good from its all-pervading agency, and might be more inclined to trust agencies of a non-governmental kind.
But leaving out the greater part of the large topic comprehended under the title of this article, I propose here to deal only with a comparatively small remaining part -- those sins of legislators which are not generated by their personal ambitions or class interests, but result from a lack of the study by which they are morally bound to prepare themselves.
A druggist's assistant who, after listening to the description of pains which he mistakes for those of colic, but which are really caused by inflammation of the cecum, prescribes a sharp purgative and kills the patient, is found guilty of manslaughter. He is not allowed to excuse himself on the ground that he did not intend harm but hoped for good. The plea that he simply made a mistake in his diagnosis is not entertained. He is told that he had no right to risk disastrous consequences by meddling in a matter concerning which his knowledge was so inadequate. The fact that he was ignorant how great was his ignorance is not accepted in bar of judgment. It is tacitly assumed that the experience common to all should have taught him that even the skilled, and much more the unskilled, make mistakes in the identification of disorders and in the appropriate treatment; and that having disregarded the warning derivable from common experience, he was answerable for the consequences.
We measure the responsibilities of legislators for mischiefs they may do, in a much more lenient fashion. In most cases, so far from thinking of them as deserving punishment for causing disasters by laws ignorantly enacted, we scarcely think of them as deserving reprobation. It is held that common experience should have taught the druggist's assistant, untrained as he is, not to interfere; but it is not held that common experience should have taught the legislator not to interfere til1 he has trained himself Though multitudinous facts are before him in the recorded legislation of our own country and of other countries, which should impress on him the immense evils caused by wrong treatment, he is not condemned for disregarding these warnings against rash meddling. Contrariwise, it is thought meritorious in him when -- perhaps lately from college, perhaps fresh from keeping a pack of hounds which made him popular in his county, perhaps emerging from a provincial town where he acquired a fortune, perhaps rising from the bar at which he has gained a name as an advocate -- he enters Parliament; and forthwith, in quite a light-hearted way, begins to aid or hinder this or that means of operating on the body politic. In this case there is no occasion even to make for him the excuse that he does not know how little he knows; for the public at large agrees with him in thinking it needless that he should know anything more than what the debates on the proposed measures tell him.
