the body. The highest conditions of human society reached hitherto have cast such work to slaves; but supposing slavery of a politically defined kind to be done away with, mechanical and foul employment must, in all highly organized states, take the aspect either of punishment or probation. All criminals should at once be set to the most dangerous and painful forms of it, especially to work in mines and at furnaces,56 so as to relieve the innocent population as far as possible: of merely rough (not mechanical) manual labour, especially agricultural, a large portion should be done by the upper classes;—bodily health, and sufficient contrast and repose for the mental functions, being unattainable without it; what necessarily inferior labour remains to be done, as especially in manufactures, should, and always will, when the relations of society are reverent and harmonious, fall to the lot of those who, for the time, are fit for nothing better. For as, whatever the perfectness of the educational system, there must remain infinite differences between the natures and capacities of men; and these differing natures are generally rangeable under the two qualities of lordly, (or tending towards rule, construction, and harmony), and servile (or tending towards misrule, destruction, and discord); and since the lordly part is only in a state of profitableness while ruling, and the servile only in a state of redeemableness while serving, the whole health of the state depends on the manifest separation of these two elements of its mind; for, if the servile part be not separated and rendered visible in service, it mixes with, and corrupts, the entire body of the state; and if the lordly part be not distinguished, and set to rule, it is crushed and lost, being turned to no account, so that the rarest qualities of the nation are all given to it in vain.57
II. Laws.
110. These are the definitions and bonds of custom, or of what the nation desires should become custom.
Law is either archic,58 (of direction), meristic, (of division), or critic, (of judgment).
Archic law is that of appointment and precept: it defines what is and is not to be done.
Meristic law is that of balance and distribution: it defines what is and is not to be possessed.
Critic law is that of discernment and award: it defines what is and is not to be suffered.
111. A. Archic Law. If we choose to unite the laws of precept and distribution under the head of "statutes," all law is simply either of statute or judgment; that is, first the establishment of ordinance, and, secondly, the assignment of the reward, or penalty, due to its observance or violation.
To some extent these two forms of law must be associated, and, with every ordinance, the penalty of disobedience to it be also determined. But since the degrees and guilt of disobedience vary, the determination of due reward and punishment must be modified by discernment of special fact, which is peculiarly the office of the judge, as distinguished from that of the lawgiver and law-sustainer, or king; not but that the two offices are always theoretically, and in early stages, or limited numbers, of society, are often practically, united in the same person or persons.
112. Also, it is necessary to keep clearly in view the distinction between these two kinds of law, because the possible range of law is wider in proportion to their separation. There are many points of conduct respecting which the nation may wisely express its will by a written precept or resolve, yet not enforce it by penalty:59 and the expedient degree of penalty is always quite a separate consideration from the expedience of the statute; for the statute may often be better enforced by mercy than severity, and is also easier in the bearing, and less likely to be abrogated. Farther, laws of precept have reference especially to youth, and concern themselves with training; but laws of judgment to manhood, and concern themselves with remedy and reward. There is a highly curious feeling in the English mind against educational law: we think no man's liberty should be interfered with till he has done irrevocable wrong; whereas it is then just too late for the only gracious and kingly interference, which is to hinder him from doing it. Make your educational laws strict, and your criminal ones may be gentle; but, leave youth its liberty and you will have to dig dungeons for age. And it is good for a man that he "wear the yoke in his youth:" for the reins may then be of silken thread; and with sweet chime of silver bells at the bridle; but, for the captivity of age, you must forge the iron fetter, and cast the passing bell.
113. Since no law can be, in a final or true sense, established, but by right, (all unjust laws involving the ultimate necessity of their own abrogation), the law-giving can only become a law-sustaining power in so far as it is Royal, or "right doing;"—in so far, that is, as it rules, not misrules, and orders, not dis-orders, the things submitted to it. Throned on this rock of justice, the kingly power becomes established and establishing; "θειος," or divine, and, therefore, it is literally true that no ruler can err, so long as he is a ruler, or αρχων ουδεις αμαρτανει τοτε ὁταν αρχων η; perverted by careless thought, which has cost the world somewhat, into—"the king can do no wrong."
114. B. Meristic Law,60 or that of the tenure of property, first determines what every individual possesses by right, and secures it to him; and what he possesses by wrong, and deprives him of it. But it has a far higher provisory function: it determines what every man should possess, and puts it within his reach on due conditions; and what he should not possess, and puts this out of his reach, conclusively.
115. Every article of human wealth has certain conditions attached to its merited possession; when these are unobserved, possession becomes rapine. And the object of meristic law is not only to secure to every man his rightful share (the share, that is, which he has worked for, produced, or received by gift from a rightful owner), but to enforce the due conditions of possession, as far as law may conveniently reach; for instance, that land shall not be wantonly allowed to run to waste, that streams shall not be poisoned by the persons through whose properties they pass, nor air be rendered unwholesome beyond given limits. Laws of this kind exist already in rudimentary degree, but need large development; the just laws respecting the possession of works of art have not hitherto been so much as conceived, and the daily loss of national wealth, and of its use, in this respect, is quite incalculable. And these laws need revision quite as much respecting property in national as in private hands. For instance: the public are under a vague impression that, because they have paid for the contents of the British Museum, every one has an equal right to see and to handle them. But the public have similarly paid for the contents of Woolwich arsenal; yet do not expect free access to it, or handling of its contents. The British Museum is neither a free circulating library, nor a free school: it is a place for the safe preservation, and exhibition on due occasion, of unique books, unique objects of natural history, and unique works of art; its books can no more be used by everybody than its coins can be handled, or its statues cast. There ought to be free libraries in every quarter of London, with large and complete reading-rooms attached; so also free educational museums should be open in every quarter of London, all day long, until late at night, well lighted, well catalogued, and rich in contents both of art and natural history. But neither the British Museum nor National Gallery is a school; they are treasuries; and both should be severely restricted in access and in use. Unless some order of this kind is made, and that soon, for the MSS. department of the Museum, (its superintendents have sorrowfully told me this, and repeatedly), the best MSS. in the collection will be destroyed, irretrievably, by the careless and continual handling to which they are now subjected.
Finally, in certain conditions of a nation's progress, laws limiting accumulation of any kind of property may be found expedient.
116. C. Critic Law determines questions of injury, and assigns due rewards and punishments to conduct.
Two curious economical questions arise laterally with respect to this branch of law, namely, the cost of crime, and the cost of judgment.
Our politicians, even the best of them, regard only the distress caused by the
So that the law of national health is like that of a great lake or sea, in perfect but slow circulation, letting the dregs fall continually to the lowest place, and the clear water rise; yet so as that there shall be no neglect of the lower orders, but perfect supervision and sympathy, so that if one member suffer, all members shall suffer with it.
"ολιγης, και αλλως γιγνομενης." (Little, and that little born in vain.) The bitter sentence never was so true as at this day.
[This following note is a mere cluster of memoranda, but I keep it for reference.] Thetic, or Thesmic, would perhaps be a better term than archic; but liable to be confused with some which we shall want relating to Theoria. The administrators of the three great divisions of law are severally Archons, Merists, and Dicasts. The Archons are the true princes, or beginners of things; or leaders (as of an orchestra). The Merists are properly the Domini, or Lords of houses and nations. The Dicasts, properly, the judges, and that with Olympian justice, which reaches to heaven and hell. The violation of archic law is ἁμαρτια (error), πονηρια (failure), or πλημμελεια (discord). The violation of meristic law is ανομια (iniquity). The violation of critic law is αδικια (injury). Iniquity is the central generic term; for all law is
[This is the only sentence which, in revising these essays, I am now inclined to question; but the point is one of extreme difficulty. There might be a law, for instance, of curfew, that candles should be put out, unless for necessary service, at such and such an hour, the idea of "necessary service" being quite indefinable, and no penalty possible; yet there would be a distinct consciousness of illegal conduct in young ladies' minds who danced by candlelight till dawn.]
[Read this and the next paragraph with attention; they contain clear statements, which I cannot mend, of things most necessary.]
