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Corporai Inflictions.


previously to be settled, though the discussion of it is frequently implicated in the discussion of those other matters. Supposing the region of police and magisterial activity were restricted to the smallest possible dimensions, and placed under the most satisfactory judicial or executive control, it still has to be ascertained whether, for any public purposes whatsoever, the person of a citizen can, with due regard to recognised constitutional principles, be exposed to certain kinds of forcible aggression or violation. In some respects, a line has been in practice drawn, which, in the matter at least of criminal punishments, excludes certain modes of corporal aggression as possible modes of punishment. To this class belong all kinds of mutilation, whether temporary or permanent, and all that is rather vaguely designated by the name of torture. When the question of flogging comes under discussion, it is always held to be a sufficient condemnation of it to establish that it belongs, especially if severe and repeated, to the class of “torture;' and the same conclusive objection has been made to the use of what is known in prison discipline as the “silent system, and certain other kinds of punishment which are only proved after long experience to be far more painful and destructive than at first sight they seem. Such punishments are those of working, as at the treadmill, for a great length of time, at a wholly unproductive sort of labour, or being placed in positions of shame and public ignominy, as for instance by wearing a strait waistcoat, or being placed in the stocks or the pillory. But, apart from the consideration of criminal punishments, to which a far greater amount of scientific and humane thought has been attracted than elsewhere, the propriety of using flogging as a recognised punishment, even for the purposes of army and navy discipline, has latterly been brought into serious controversy ; while, in the departments of sanitary legislation, the limits to the right of forcible personal aggression, if any such limits exist, have as yet hardly been marked at all. A very considerable strain of the rights of the public as opposed to the rights of individual citizens has been introduced by the compulsory Vaccination Laws; and the general principle of the Lunacy Laws is already being quietly, though perhaps it can hardly be said surreptitiously, extended to a new class of persons altogether, known as habitual drunkards. In these two last cases, a certain amount of assent on the part of the person directly affected is obtained or reasonably presumed, the lunatic who is at large being liable to do at least as much injury to himself as to others, and the habitual drunkard being supposed and required himself to seek at the hands of the State, with all the surrounding precautions of magisterial vigilance, the protection which he has lost the power of affording to himself. But there are cases in which enthusiastic medical science, or the affectation of medical science, is not content to confine its aggressiveness to the case of an advantage to be obtained for the whole population, (as in applying a comprehensive system of vaccination,) or of an advantage to be conferred on narrow classes of persons who may properly be assumed to be eagerly solicitous for it. In the case of laws which involve a violent trespass on the person of a kind notoriously resented by the bulk of the community, if any justification is to be found, it must be sought in some wide-spread advantage to be obtained by large classes of the community, who, while innocent themselves and unable to

Effect of a Disregard of Private Rights. 461

find protection from the natural family protectors who are directly responsible for them, have no recourse for safety but in the oppression of their fellow-citizens, or of some narrow classes of them. The mere statement of this solitary opening for what some might think a justification exposes the nullity of it. It is only perhaps a few here and there who are the direct sufferers in each generation, but the aggregate suffering of injustice must not be calculated, for constitutional purposes, by ranging on one side a numerical estimate of those who are injured and on the other an equally precise enumeration of those who are believed to be profited. Each solitary aggression radiates in the way of diffusing alarm and apprehension through all classes of society; and if once the bulwarks of personal liberty in respect of honour and self-respect are believed to be vacillating, no securities of any value exist at all, except such as are presented from moment to moment in the casual abstinence from the exploration of new fields by the experimental science of the day.



The period of fifty years which has been passed in review in the previous chapters might appear to be arbitrarily chosen, if the remarks with which this treatise opened were not borne in mind throughout. It is not that any one period is more significant or momentous than any other period ; and still less that the times in wbich a writer is living are really better known to him than previous times; but that, in order to show what the Constitution is, it is necessary to exhibit it as living and progressing, and not as stagnating. It is customary, indeed, to present the Constitution only on its legal side; but, though for purposes of controversy in Courts of Justice the legal side is the only side, yet for purposes of political evaluation, comparison, or prediction, it is the least important or true side. The Constitution of a country, and preeminently the Constitution of England, is the product of innumerable forces and facts which are emphatically mobile, and is consequently undergoing incessant flux and change. To know the Constitution is to appreciate the character and the rate of change; and this can only be done by extending the survey over a period long enough to present what may be called the dynamical quality of the Constitution, and not merely to concen

History the Exponent of the Constitution. 463

trate the gaze on a momentary situation, which, at the best, can only disclose component statical elements.

Nevertheless, the method here pursued demands much of the reader. During a period exceeding that of a generation, events of lasting Constitutional import lose a great part of that lively political interest which becomes transferred from year to year to the topics, problems, and struggles of the day. On the other hand, these topics of the day are so familiarly discussed in every form of periodical, whether appearing daily, weekly, monthly or quarterly, that the public curiosity is more than sated, and, even for the purpose of the gravest philosophical research, and of a treatment in due proportion to the parallel events of other times, the attention even of the professed student can hardly be roused, or if roused, can only be momentarily retained. Nevertheless, it is true that the partial handling of grave constitutional problems which is necessarily incident to their isolated discussion at the moment of accidental political interest, and at no other moment, is one cause of the want of preparation of the public mind for meeting unforeseen constitutional emergencies, and for resisting the sophisms of popular political charlatans. It is thus that in Constitutional history, and not least in recent Constitutional history, the only explanation can be found of Constitutional Law, and of the facts of the Constitution itself.

If it were possible to characterise briefly the period over which the previous review has extended, it might be said that the changes which have taken place are mainly exhibited in three distinct directions:

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