suing night-thieves; and among the latter the tithings were used both for police and for fiscal purposes. The frith-borh or frank pledge, a state institution of the Anglo-Saxons, was the suretyship and mutual responsibility of ten associates for each other's good conduct, and no doubt was efficient in keeping the peace. The modern police of continental Europe, as an instrument by which governments afraid of their subjects suppress open dissatisfaction as much as possible, is the proper engine of despotism. Accordingly, nothing is more hated by the subjects than this power. The political action of free nations needs little or no aid from a police in time of peace. It is confined for its functions chiefly to the securing of the quiet and order of civic communities, and the detection of offenders.

ation.

$83.

If the executive of a nation derived its support from state State's right of tax- lands or domains, and the lawmakers served without fee or salary, if the costs in suits paid the salaries of judges, and soldiers defrayed their own charges, there would be no great perplexity in providing for the other expenses of the state. But nations have generally abandoned these rude ways of bearing public burdens, and have preferred the method of taking a part of the property of each individual or family for this purpose. The right to do this has been explained by the state's being the original owner of the soil. In the feudal monarchies the soil to some extent, and in France almost altogether, was conceived of as having been the suzerain's original property, which the vassals received on condition of military service, and the pecuniary payments, when an heir took the property or it was allowed to be sold to a stranger, were justified on the same ground. But as a general explanation of private property in land the

*Comp. especially Stubbs, Constitutional Hist. of Eng. i., 98 and 87, and Sohm, Fränk. Reichs- u. Rechtsgesch., 181 et seq. See also Waitz, Deutsch. Verfassungsgesch., ed. 2, Beilage i., on the so-called 'Gesammtbürgschaft.'

theory is not tenable, as we have already attempted to demonstrate. Another explanation of the right is that it denotes the payment due for protection. But protection is owed by the state to every one, whether he can pay taxes or not, and would be just as much obligatory on the state, if it needed no taxes. The true ground is, that taxes are in some shape a vital necessity; none of the functions of the state could go on without a gift from the citizen of a part of the products of his labor. If the state is the condition of all good and cannot be maintained in existence without taxes, and if a very close tie subsists between the state and the citizen; his obligations as a member of the community make it necessary for him to aid the state by part of his property, just as much as by a part of his time and strength in war.

The power of a government to tax its subjects is the most liable to be abused of all the powers which the state possesses. The limits to the exercise of this power will be discussed in another place. Here we remark only (1) that taxation must be as equal as possible, so that labor and capital shall feel it alike, and be unable to shift it off upon one another; (2) that it must not affect any kind of production or branch of business by forcing them to pay for the protection of another branch; and (3) that it must not be within the power of those who pay no taxes to levy them on some one else. The tax-payer ought to give his consent to the imposition in some constitutional way; and the class which pays no taxes should have no power by its representatives to lay them on those who own taxable property.

State's right to levy war.

$84.

The state's right of waging war includes its obligation to defend its territory and individual inhabitants, its right to protect whatever is its own, both its spiritual property of sovereign existence and its outward property of whatever kind, and its right, imposed on it by the necessity of having no superior, of redressing injuries as well as of preventing them in the future. As by its system of

peaceful justice it renders a great part of self-reparation unnecessary for the individual citizens, so by its war-power it makes useless in great measure the associations of neighbors or of districts for self-defence. This is a prime necessity of any protecting power, but its means to fulfil this obligation must come from the money and muscle of the inhabitants of the country. In theory, then, all able-bodied persons must defend the public interests with their lives and their treasures, so that in a sense they must protect themselves as well as the state, and the state turns out to be the organizing power rather than the force or might. It may happen indeed for the convenience of all that some are persuaded or forced to serve in war while others who stay at home are subject to heavier burdens of taxation than before. And as contiguous nations are always prone to quarrel on grounds of justice or of fancied wrong, or provide against each other's injuries by striking the first blow, while governments, to a great extent, involve the people in war on their own account rather than for the public good; this necessary power is the most dangerous of all public powers, especially when the carrying on of war is left to a military class, and when war itself hurts the employments of peace and disturbs wages. All which shows that the power of declaring war ought to be subject to some control of the nation on which the heavy load rests.

CHAPTER V.

LIMITS OF STATE POWER.-HUMBOLDT AND J. S. MILL ON

THESE LIMITS.

limitations.

$85.

THE powers of the state thus spoken of, and the formidable State power needs means by which it must sustain itself at the risk of the citizen's life and property, may be greatly abused, even in free states. Those powers in particular, which we have distinguished from the jural, as not being absolutely necessary for the existence of the state, may become most galling and tyrannical in their exercise; nowhere else does the folly and the wrong of governing too much appear in so clear a light, so that one is disposed to doubt whether this kind of powers would not with advantage be resigned by the state altogether and be transferred to individuals or associations. It is important therefore to look about for some limits which shall guide public opinion on the state's exercise of these powers, and possibly serve as constitutional checks against governing overmuch. Is not this one of the principal difficulties in the theory and practice of the state,—to find out how far the state ought to go in its legislation, especially in its prohibitory and its moral legislation, and how far it ought to trust to the individual and to leave him to his own responsibility, in the faith that thus he will become more loyal and manly than he would if restrained and watched like a child?

The ancient state treated its people as if they were one family; directing in all things, and leaving nothing which should absolutely pertain to the individual without apprehension of the state's interference. He was born for the state, and the

state must determine how he should live.

The modern free state has recognized the duty of leaving the individual undisturbed, within certain limits, in the enjoyment of his liberty; but, although it admits, in theory, that the state exists primarily, not for itself, but for the individual members, it has no exact definition, in constitution or law, of what it ought in right reason to do for him, or for the community of citizens. Or else it prescribes limits which are not consistent with the free movements of individual intellect or activity. Or finally, it may, although this is not common, make so wide a path for him to move in, that there can scarcely be a well ordered and well protected society.

Limits of statepower.

86.

Several modern writers, whose opinions are entitled to great respect, have endeavored to contract the limits of state-legislation as much as possible, while aiming to secure the interests of the state and the community. I mention William von Humboldt, the great philologist, whose 'ideas towards an attempt to define the limits of the state's activity,' appeared first in 1851, and in his collected works in 1852 (vols. vii. and last), although written long before; * John Stuart Millon Liberty' (1859); and Laboulaye, 'l'État et les limites' (1863). Of these writers the great German linguist and Mr. Mill enter most at large into the subject, both to show what the state may do and what it may not do. I can

*This work, written by von Humboldt, at the age of twenty five, and during the French revolution, was intended at first for immediate publication, but only small parts of it were then published, and that without the author's knowledge, by his friend Schiller and by Biester. Humboldt delayed giving it to the world during his lifetime, at first, it would seem, from a desire to re-cast some parts of it; then, involved in public affairs, he let it lie in manuscript until his death, in 1835. The printed text contains a small lacuna at the end of Chapter I. Whether Humboldt may not have changed his opinions in the course of his life, and for this reason have been disinclined to give them to the world, may be possible, but since their appearance they have had considerable influence. Comp. M. Chrétien's introd. to his transl. into French (Paris, 1867).