under forms essentially similar, wherever and whenever a political society exists. A man possessed of this knowledge can as readily recognise the objects described in Peru or China, as a chemist can recognise oxygen or hydrogen, or a botanist can recognise certain plants in any part of the world. An American law has not a different nature or properties-considered as the subject of jurisprudence-from an European law, nor an African from an Asiatic law. But the political events of each nation or political unit, considered as the subject of history, have an individual character, and can only be understood if taken as successive parts of a connected whole, and in conjunction with antecedent as well as subsequent events. § 8 Speculative politics, or legislative science, is, as well as the positive branch, founded on observation; but the facts on which it relies are less bare and naked than those with which the other department of political science is contented. The genera : lizations of positive politics merely describe something which exists they merely affirm, for example, that a government, or a law, or a legal right, has certain universal attributes; or that certain properties are essentially involved in the idea. They pronounce nothing to be good or bad; they lay down no general propositions respecting the tendency of laws or institutions. Whereas speculative politics, or legislative science, undertakes to determine the operation of political causes, and to establish principles which may guide the legislator in making new, or altering old laws. Now the process by which we arrive at the conclusion that monarchy, for example, or aristocracy, or democracy, tends to produce certain consequences is, in the main, a deductive? process. But the facts upon which the inferences rest are less abstract than those which support the propositions of positive politics. They may consist in part of admitted principles of human nature, which require no special proof; but, more generally, they are historical facts, accompanied with their circumstances. For example, an argument proving that the general tendency of despotic government is bad, might refer to the oriental despotisms, the Greek Túparrot, the Roman empire, the absolute princes of Italy in the middle ages, the absolute monarchies of Europe from the seventeenth century downwards, and the empire of Napoleon. At other times the facts referred to by the political speculator are those political facts susceptible of a numerical expression, which are commonly called statistical. When, however, these facts have served their purpose, and have been used in the induction to which they contribute, they are discarded, and are replaced by the general proposition which they have served to establish. They are not related on their own account; but are used merely as a platform to raise the spectator to a higher elevation. § 9 The third class of facts which fall within the range of political observation are those which are observed for a practical, and not for a historical or scientific purpose. The whole of the executive business of government is founded upon certain facts, which have to be ascertained by a proper process of observation and inquiry, before the executive functionary proceeds to act. This process is necessary both for administrative and judicial authorities; for ministers of state, boards of revenue, soldiers and sailors, officers of police, and for magistrates and courts of justice. In some cases, the facts are numerous, intricate, doubtful, contested, and difficult to ascertain : in other cases, they are simple and undisputed. But still, before the executive power of the government is set in motion, even for the most trifling purpose, some fact or facts must be previously known or determined. All legislation likewise proceeds upon the knowledge of certain facts. Whatever may be the general maxims by which the legislator is guided, the occasion of his legislation must be indicated by certain events. The existence of certain political evils, the failure of an existing law for its admitted object, popular discontent with existing institutions, extraordinary occurrences, such as a war, a famine, a pestilence, may be the circumstances which induce the legislator to act. All these are facts to be determined by proper observations, either made under the direction of the legislative authority, or communicated to it. The proper modes of observation for the conduct of a govern ment involve numerous and important practical questions. One important function of the executive government consists in the immediate observation of facts by its own agents; which is the case generally with all public functionaries engaged in duties of inspection, protection, care, and superintendence: such as the military and naval services, policemen, revenue officers, officers of prisons, hospitals, charitable institutions, &c. Functionaries of this sort either act at once upon a view of the fact observed, or report it to a superior officer for his information. Diplomatic agents, again, obtain authentic information as to the proceedings of foreign governments, and other events of public importance in the countries to which they are accredited, and transmit an account of them to their own government. (3) At times of war, in particular, and of popular commotions, early and accurate information is of great importance. (2) A government must, as guardian of the public interests, take measures of various kinds for obtaining trustworthy and regular intelligence upon certain classes of subjects. Persons so employed are like the speculatores or reconnoitring party of an army, or the watch of a ship-they keep a look-out, in order to give timely notice of danger. In cases where the executive power of the government is to be set in motion, and where no information is obtainable from its own officers, the facts must be ascertained by extraneous testimony. For this purpose rules are necessary, such as constitute, in great measure, the practice of administrative departments, and the forms of judicial procedure with respect to the reception of evidence. The subject of judicial evidence has been treated by jurists with more or less fulness since jurisprudence became a science; but it has, perhaps, been elaborated in more detail, and has received a more systematic form, in England than in any other country. This has been owing to peculiarities in the procedure of our courts of common law, which need not be here noticed. (31) See Wicquefort, L'Ambassadeur et ses Fonctions, lib. ii. sect. 10; and Vatel, Law of Nations, b. 4, § 123. (32) Upon military signals by means of fire, see the curious discussion of Polybius, x. 43-7. Compare Vegetius de Re Mil. iii. 5. With respect to our present subject, the most important rule of evidence in the law of England is that which prescribes the exclusion of hearsay testimony; that is to say, of statements of fact made by the witness, not from his own observation, but from the observation of others. We shall have occasion to advert at greater length hereafter to this rule, in connexion with the subject of historical testimony; (33) but we may now refer to it as recognising the principle, that the facts deposed to before a court of justice must be derived from the personal observation of the witness himself. In judicial proceedings, therefore, where the facts are determined, not by official reports of agents of the government, but by the testimony of witnesses taken casually from the midst of the community, the general principle is recognised by our law, that the witness must speak to an event which occurred under his notice, and within the reach of his senses. The usual course of proceeding for an executive government is, to receive information of facts, and thereupon to issue orders. Government messengers bring reports, and carry back instructions. An act of administration is always founded upon some prior fact, the existence of which is ascertained either by official agents, or by the testimony of extraneous witnesses. The ресиliarity of an administrative proceeding is, that the proper authorities may act upon the knowledge of the fact without being applied to, or set in motion, from without; whereas, a judicial tribunal can never take notice of any fact which is not brought before it by a complaining party, according to the established forms of procedure. The process of ascertaining facts for legislative purposes is not in general so formal, or subject to such strict rules of evidence, as the procedure of executive departments, whether administrative or judicial. Petitions, complaints, remonstrances, statements of grievances, are presented to a legislature; or, if it consist of a deliberative body, individual members of that body (33) Below, ch. vii. § 6. may represent facts upon their own authority. It may then either proceed at once to legislate upon the faith of such suggestions; or it may take them as raising merely a presumption, and may institute an inquiry of its own. It may call for papers, accounts, correspondence, and other documents: it may likewise, by proper means, examine witnesses, and thus ascertain by original testimony the facts bearing upon the subject under consideration. The facts to be ascertained in inquiries conducted for the information of a government, are generally such as fall within the senses of ordinary persons, and require no peculiar skill or experience for their observation. But it is necessary that such an investigation should be conducted by a person of proper qualifications and experience; and it is his business to select the persons who can speak to the material facts, and to arrange their evidence in a convenient and lucid order. Such, for example, is the function of a legal practitioner who prepares a case for a trial in court; and such is the function of a person who presides over an inquiry for a legislative or administrative purpose. In A government may narrow too much its means of observing and ascertaining facts. It may make rules excluding evidence in judicial proceedings; it may refuse to hear complaints and receive petitions; it may be supine in instituting inquiries for practical purposes; it may allow important social phenomena to pass by unheeded and unregistered. For example, no complete enumeration of a population was made by any European country until the last century, and in England not until 1801. no Mahometan country could a government venture to take a census, as an inquiry into the number of women in a house would be considered an intolerable violation of the domestic rights of the head of the family. Again, by the exclusion of the public from the proceedings of judicial and deliberative bodies, the means of reporting and recording them may be practically interdicted. On the other hand, the government may systematically employ spies, as was done under the Roman empire, and by VOL. I. K |