Popular Science Monthly/Volume 25/July 1884/The Great Political Superstition
|←Notes||Popular Science Monthly Volume 25 July 1884 (1884)
The Great Political Superstition
By Herbert Spencer
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By HERBERT SPENCER.
THE great political superstition of the past was the divine right of kings. The great political superstition of the present is the divine right of parliaments. The oil of anointing seems unaware to have dripped from the head of the one on to the heads of the many, and given sacredness to them also and to their decrees.
However irrational we may think the earlier of these beliefs, we must admit that it was more consistent than is the latter. Whether we go back to times when the king was a god, or to times when he was a descendant of a god, or to times when he was god-appointed, we see valid reason for passive obedience to his will. When, as under Louis XIV, theologians like Bossuet taught that kings "are gods, and share in a manner the Divine independence," or when it was thought, as by our own Tory party in old days, that "the monarch was the delegate of heaven," it is clear that, given the premise, the inevitable conclusion was that no bounds could be set to governmental commands. But for the modern belief, such a warrant does not exist. Making no pretension to divine descent or divine appointment, a legislative body can show no supernatural justification for its claim to unlimited authority; and no natural justification has ever been attempted. Hence, belief in its unlimited authority is without that consistency which of old characterized belief in a king's unlimited authority.
It is curious how commonly men continue to hold in fact, doctrines which they have rejected in name—retaining the substance after they have abandoned the form. In Theology an illustration is supplied by Carlyle, who, in his student-days, giving up, as he thought, the creed of his fathers, rejected its shell only, and kept the contents—was proved by his conceptions of the world, and man, and conduct, to be still among the sternest of Scotch Calvinists. Similarly, Science furnishes an in- stance in one who united naturalism in Geology with supernaturalism in Biology—Sir Charles Lyell. While, as the leading expositor of the uniformitarian theory in geology, he ignored wholly the Mosaic cos- mogony, he long defended that belief in special creations of organic types, for which no other source than the Mosaic cosmogony could be assigned; and only in the latter part of his life surrendered to the ar- guments of Mr. Darwin. In Politics, as above implied, we have an analogous case. The tacitly - asserted doctrine, common to Tories, Whigs, and Radicals, that governmental authority is unlimited, dates back to times when the lawgiver was supposed to have a warrant from God; and it survives still, though the belief that the lawgiver has God's warrant has died out. "Oh, an Act of Parliament can do any- thing," is the reply made to a citizen who questions the legitimacy of some arbitrary state interference; and the citizen stands paralyzed. It does not occur to him to ask the how, and the when, and the whence, came this asserted omnipotence, bounded only by physical impossibilities.
Here we will take leave to question it. In default of the justifica- tion, once logically valid, that the ruler on Earth being a deputy of the ruler in Heaven, submission to him in all things is a duty, let us ask what reason there is for asserting the duty of submission in all things to a ruling power, constitutional or republican, which has no heaven- derived supremacy. Evidently this inquiry commits us to a criticism of past and present theories concerning political authority. To revive questions supposed to be long since settled, may be thought to need some apology; but there is a sufficient apology in the implication above made clear, that the theory commonly accepted is ill-based or unbased.
The notion of sovereignty is that which first presents itself; and a critical examination of this notion, as entertained by those who do not postulate the supernatural origin of sovereignty, carries us back to the arguments of Hobbes.
Let us grant Hobbes's postulate that, " during the time men live without a common power to keep them all in awe, they are in that con- dition which is called war ... of every man against every man"; * though this is not true, since there are some small societies in which, without any "common power to keep them all in awe," men maintain peace and harmony better than it is maintained in societies where such a power exists. Let us suppose him to be right, too, in assuming that the rise of a common ruling power over associated men, results from their desires to preserve order among themselves; though, in fact, it habitually arises from the need for subordination to a leader in war,
- Hobbes's "Collected Works," vol. iii, pp. 112, 113. defensive or offensive, and has originally no necessary, and often no
actual, relation to the preservation of order among the combined indi- viduals. Once more, let us admit the indefensible assumption that to escape the evils of chronic warfare, which must otherwise continue among them, the members of a community enter into a "pact or cove- nant," by which they all bind themselves to surrender their primitive freedom of action, and subordinate themselves to the will of a ruling power agreed upon; * accepting, also, the implication that their de- scendants forever are bound by that covenant which their great-great- great, etc., grandfathers made for them. Let us, I say, not object to these data, but pass to the conclusions Hobbes draws. He says:
For, where no covenant hath preceded, there hath no right been transferred, and every man has right to every thing; and, consequently, no action can be unjust. But when a covenant is made, then to break it is unjmt^ and the (iiQ^- mtion of msjj&Tio^ is, 110 othQT thoin tlie not performance of covenant. . . . There- fore, before the names of just and unjust can have place, there must be some coercive power to compel men equally to the performance of their covenants by the terror of some punishment greater than the benefit they expect by the breach of their covenant.!
Were people's characters in Hobbes's day really so bad as to war- rant his assumption that none would perform their covenants in the absence of a coercive power and threatened penalties? In our day " the names of just and unjust can have place " quite apart from recogni- tion of any coercive power. Among my friends I could name half a dozen whom I would implicitly trust to perform their covenants with- out any " terror of some punishment"; and over whom the require- ments of justice would be as imperative in the absence of a coercive power as in its presence. Merely noting, however, that this unwar- ranted assumption vitiates Hobbes's argument for State-authority, and accepting both his premises and conclusion, we have to observe two significant implications. One is that State-authority, as thus derived, is a means to an end, and has no validity, save as subserving that end: if the end is not subserved, the authority, by the hypothesis, does not exist. The other is, that the end for which the authority exists, as thus specified, is the enforcement of justice—the maintenance of equi- table relations. The reasoning yields no warrant for other coercion over citizens than that which is required for preventing direct aggres- sions, and those indirect aggressions constituted by breaches of con- tract; to which, if we add protection against external enemies, the entire function implied by Hobbes's derivation of sovereign authority is comprehended.
Hobbes argued in the interests of absolute monarchy. His modern admirer, Austin, had for his aim to derive the authority of law from the unlimited sovereignty of one man, or of a number of men, small
- Hobbes's "Collected Works," vol. iii, p. 159. f Ibid., pp. 130, 131. or large, compared with the whole community. Austin was originally
in the army; and it has been truly remarked that " the permanent traces left " may be seen in his "Province of Jurisprudence." When, undeterred by the exasperating pedantries—the endless distinctions and definitions and repetitions—which serve but to hide his essential doctrines, we ascertain what these are, it becomes manifest that he assimilates civil authority to military authority: taking for granted that the one, as the other, is above question in respect of both origin and range. To get justification for positive law, he takes us back to the absolute sovereignty of the power imposing it—a monarch, an aristocracy, or that larger body of men who have votes in a democ- racy; which body he also styles the sovereign, in contrast with the remaining portion of the community, which, from incapacity or other cause, remains subject. And having afiirmed, or rather taken for granted, the unlimited authority of the body, simple or compound, small or large, which he styles sovereign, he, of course, has no diffi- culty in deducing the validity of its edicts, which he calls positive law. But the problem is simply moved a step further back, and there left unsolved. The true question is. Whence the sovereignty? What is the assignable warrant for this unqualified supremacy assumed by one, or by a small number, or by a large number, over the rest? A critic might fitly say—" We will dispense with your process of deriv- ing positive law from unlimited sovereignty: the sequence is obvious enough. But first prove your unlimited sovereignty."
To this demand there is no response. Analyze his assumption, and the doctrine of Austin proves to have no better basis than that of Hobbes. In the absence of admitted divine descent or appointment, neither single-headed ruler nor many-headed ruler can produce such credentials as the claim to unlimited sovereignty implies.
"But surely," will come in deafening chorus the reply, "there is the unquestionable right of the majority, which gives unquestionable right to the parliament it elects."
Yes, now we are coming down to the root of the matter. The divine right of Parliaments means the divine right of majorities. The fundamental assumption made by legislators and people alike is that a majority has powers to which no limits can be put. This is the current theory which all accept, without proof, as a self-evident truth. I^ever- theless, criticism will, I think, show that this current theory requires a radical modification.
In an essay on "Railway Morals and Railway Policy," published in the "Edinburgh Review," for October, 1854, I had occasion to deal with the question of a majority's powers, as exemplified in the con- duct of public companies; and I can not better prepare the way for conclusions presently to be drawn than by quoting some passages from it: Under whatever circumstance, or for whatever ends, a number of men co- operate, it is held that if difference of opinion arises among them, justice requires that the will of the greater number shall be executed rather than that of the smaller number; and this rule is supposed to be uniformly applicable, be the question at issue what it may. So confirmed is this conviction, and so little have the ethics of the matter been considered, that to most this mere suggestion of a doubt will cause some astonishment. Yet it needs but a brief analysis to show that the opinion is little better than a political superstition. Instances may readily be selected, which prove, by reductio ad alsurdum, that the right of a majority is a purely conditional right, valid only within specific limits. Let ns take a few. Suppose that at the general meeting of some philanthropic associa- tion it was resolved that, in addition to relieving distress, the association should employ home missionaries to preach down popery. Might the subscriptions of Catholics, who had joined the body with charitable views, be rightfully used for this end? Suppose that of the members of a book-club the greater number, thinking that, under existing circumstances, rifle-practice was more important than reading, should decide to change the purpose of their union, and to apply the funds in hand for the purchase of powder, ball, and targets. Would the rest be bound by this decision? Suppose that, under the excitement of news from Australia, the majority of a Freehold Land Society should determine, not simply to start in a body for the gold-diggings, but to use their accumulated capital to provide outfits. "Would this appropriation of property be just to the minority? and must these join the expedition? Scarcely any one would vent- ure an aflirmative answer even to the first of these questions, much less to the others. And why? Because every one must perceive that by uniting himself with others, no man can equitably be betrayed into acts utterly foreign to the purpose for which he joined them. Each of these supposed minorities would properly reply to those seeking to coerce them: •' We combined with yon for a defined object; we gave money and time for the furtherance of that object; on all questions thence arising we tacitly agreed to conform to the will of the greater number; but we did not agree to conform on any other questions. If you induce us to join you by professing a certain end, and then undertake some other end of which we were not apprised, you obtain our support under false pretenses: you exceed the expressed or understood compact to which we com- mitted ourselves; and we are no longer bound by your decisions." Clearly this is the only rational interpretation of the matter. The general principle under- lying the right government of every incorporated body is, that its members con- tract with each other severally to submit to the wiU of the majority in all mat- ters concerning the fulfillment of the objects for which they are incorporated; but in no others. To this extent only can the contract hold. For as it is implied in the very nature of a contract that those entering into it must know what they contract to do, and as those who unite with others for a specified object can not contemplate all the unspecified objects which it is hypothetically possible for the union to undertake, it follows that the contract entered into can not extend to such unspecified objects; and if there exists no expressed or understood contract between the union and its members respecting unspecified objects, then for the majority to coerce the minority into undertaking them is nothing less than gross tyranny.
Naturally, if such a confusion of ideas exists in respect of the pow- ers of a majority where the deed of incorporation tacitly limits those powers, still more is there likely to exist such a confusion where there has been no such deed of incorporation. But the same principle holds. I again emphasize the proposition that the members of an incorporated body are bound " severally to submit to the will of the majority in all matters concerning the fulfillment of the objects for which they are in- corporated, but in no others. And I contend that this holds of an in- corporated nation as much as of an incorporated company.
"Yes, but," comes the obvious rejoinder, *' as there is no deed by which the members of a nation are incorporated—as there neither is, nor ever was, a specification of purposes for which the union was formed, there exist no limits; and, consequently, the power of the ma- jority is unlimited."
Evidently it must be admitted that the hypothesis of a social con- tract, either under the shape assumed by Hobbes, or under the shape assumed by Rousseau, is baseless. Nay, more, it must be admitted that even had such a contract once been formed, it could not be bind- ing on the posterity of those who formed it. Moreover, if any say that in the absence of those limitations to its powers which a deed of incorporation might imply, there is nothing to prevent a majority from imposing its will on a minority by force, assent must be given—an assent, however, joined with the comment that if the superior force of the majority is its justification, then the superior force of a despot backed by an adequate aiTny, is also justified: the problem lapses. What we here seek is some higher warrant for the subordination of minority to majority than that arising from inability to resist physi- cal coercion. Even Austin, anxious as he is to establish the unques- tionable authority of positive law, and assuming, as he does, an abso- lute sovereignty of some kind, monarchic, aristocratic, constitutional, or popular, as the source of its unquestionable authority, is obliged, in the last resort, to admit a moral limit to its action over the commu- nity. While insisting, in pursuance of his rigid theory of sovereignty, that a sovereign body originating from the people "is legally free to abridge their political liberty at its own pleasure or discretion," he al- lows that "a government may be hindered by positive morality from abridging the political liberty which it leaves or grants to its sub- jects." * Hence, we have to find, not a physical justification, but a moral justification, for the supposed absolute power of the majority.
This will at once draw forth the rejoinder, *' Of course, in the ab- sence of any agreement, with its implied limitations, the rule of the majority is unlimited; because it is more just that the majority should have its way than that the minority should have its way." A very reasonable rejoinder this seems until there comes the re-rejoinder. We may oppose to it the equally tenable proposition that, in the absence of an agreement, the supremacy of a majority over a minority does not exist at all. It is co-operation of some kind, from which there arise
- "The Province of Jurisprudence Determined" (seicond edition), p. 241. these powers and obligations of majority and minority; and, in the
absence of any agreement to co-operate, such powers and obligations are also absent.
Here the argument apparently ends in a dead-lock. Under the existing condition of things no moral origin seems assignable either for the sovereignty of the majority or for the limitation of its sover- eignty. But further consideration reveals a solution of the difficulty. For if, dismissing all thought of any hypothetical agreement to co- operate heretofore made, we ask, what would be the agreement into which citizens would now enter with practical unanimity, we get a sufficiently clear answer; and with it a sufficiently clear justification for the rule of the majority inside a certain sphere, but not outside that sphere. Let us first observe a few of the limitations which at once become apparent.
Were all Englishmen now asked if they would agree to co-operate for the teaching of religion, and would give the majority power to fix the creed and the forms of worship, there would come a very em- phatic " No " from a large part of them. If, in pursuance of a pro- posal to revive sumptuary laws, the inquiry were made whether they would bind themselves to abide by the will of the majority in respect of the fashions and qualities of their clothes, nearly all of them would refuse. In like manner, if (to take an actual question of the day) people were polled to ascertain whether, in respect of the beverages they drank, they would accept the decision of the greater number, half, and probably more than half, would very decidedly decline. Similarly with respect to many other actions which most men now-a^ days regard as of purely private concern. Whatever desire there might be to co-operate for carrying on, or regulating, such actions, would be far from a unanimous desire. Manifestly, then, had social co-operation to be commenced by ourselves, and had its purposes to be specified before consent to co-operate could be obtained, there would be large parts of human conduct in respect of which co-operation would be declined; and in respect of which, consequently, no authority by the majority over the minority could be rightfully exercised.
Turn now to the converse question. For what ends would all men agree to co-operate? None will deny that for resisting invasion the agreement would be practically unanimous. Excepting only the Quakers, who, having done highly useful work in their time, are now dying out, all would unite for defensive war (not, however, for offen- sive war); and they would, by so doing, tacitly bind themselves to conform to the will of the majority in respect of measures directed to that end. There would be practical unanimity, also, in the agreement to co-operate for defense against internal enemies as against external enemies. Omitting criminals, all must wish to have person and prop- erty adequately protected. In short, each citizen desires to preserve his life, to preserve those material things which conduce to maintenance of his life, and to preserve intact his powers both of using these material things and getting further such. It is obvious to him that he can not do this if he acts alone. Against foreign invaders he is powerless unless he combines with his fellows; and the business of protecting himself against domestic invaders if he did not similarly combine, would be alike onerous, dangerous, and inefficient. That is to say, in respect of all measures for maintaining those conditions under which only the business of life can be carried on and its satis- factions obtained, every one will agree to co-operate; and, by im- plication, will agree to submit to the majority on all questions thence arising.
Details are not needful here; nor is it needful to discuss that bor- der region lying between these classes of cases, and to say how much is included in the last and how much is excluded with the first. For the present purpose, it is sufficient to recognize the undeniable truth that there are numerous kinds of actions in respect of which men would not, if they were asked, agree with anything like unanimity to be bound by the will of the majority; while there are some kinds of actions in respect of which they would almost unanimously agree to be thus bound. Here, then, we find a definite warrant for enforcing the will of the majority within certain limits, and a definite warrant for denying the authority of its will beyond those limits.
But evidently, when analyzed, the question resolves itself into the further question. What are the relative claims of the aggregate and of its units? Are the rights of the community universally valid against the individual? or has the individual some rights which are valid against the community? The judgment given on this point underlies the entire fabric of political convictions formed, and more especially those convictions which concern the proper sphere of gov- ernment. Here, then, I propose to revive a dormant controversy, with the expectation of reaching a different conclusion from that which is fashionable.
Says Professor Jevons, in his work, "The State in Relation to Labor "—" The first step must be to rid our minds of the idea that there are any such things in social matters as abstract rights." Of like character is the belief expressed by Mr. Matthew Arnold, in his article on copyright: "An author has no natural right to a property in his production. But then neither has he a natural right to anything whatever which he may produce or acquire." * So, too, I recently read in a weekly journal of high repute, that "to explain once more that there is no such thing as * natural right ' would be a waste of philosophy." And the view expressed in these extracts is commonly uttered by statesmen and lawyers in a way implying that only the un- thinking masses hold any other.
- "Fortnightly Review," in 1880, vol. xxvii, p. 322. One might have expected that utterances to this effect would hare
been rendered less dogmatic by the knowledge that a whole school of legists on the Continent maintains a belief diametrically opposed to that maintained by the English school. The idea of Natur-reckt is the root-idea of German jurisprudence. Now, whatever may be the opinion held respecting German philosophy at large, it can not be characterized as shallow. A doctrine current among a people distin- guished above all others as laborious inquirers, and certainly not to be classed with superficial thinkers, should not be dismissed as though it were nothing more than a popular delusion. This, however, by the way. Along with the proposition denied in the above quotations, there goes a counter-proposition affirmed. Let us see what it is, and what results when we go behind it and seek its warrant.
On reverting to Bentham, we find this counter-proposition overtly expressed. He tells us that government fulfills its office " by creating rights, which it confers upon individuals—rights of personal security; rights of protection for honor; rights of property"; etc.* Were this doctrine asserted as following from the divine right of kings, there would be nothing in it manifestly incongruous. Did it come to us from ancient Peru, where the Inca " was the source from which everything flowed";f or from Shoa (Abyssinia), where "of their persons and worldly substance he [the king] is absolute master"; J or from Dahome, where *'all men are slaves to the king"; * it would be consistent enough. But Bentham, far from being an absolutist like Hobbes, wrote in the interests of popular rule. In his " Consti- tutional Code " II he fixes the sovereignty in the whole people; argu- ing that it is best to "give the sovereign power to the largest possible portion of those whose greatest happiness is the proper and chosen object," because "this proportion is more apt than any other that can be proposed " for achievement of that object.
Mark, now, what happens when we put these two doctrines to- gether. The sovereign people is to appoint representatives, and so to create a government; the government thus created, creates rights; and then, having created these rights, it confers them on the sover- eign people by which it was itself created. Here is a marvelous piece of political legerdemain! Mr. Matthew Arnold, contending, in the article above quoted, that "property is the creation of law," tells us to beware of the "metaphysical phantom of property in itself." Surely, among metaphysical phantoms the most shadowy is this which supposes a thing to be obtained by creating an agents which creates the thing, and then confers the thing on its own creator!
- Bentham's Works (Bowring's edition), vol. i, p. 301.
f Prescott, "Conquest of Peru," book i, ch. i.
X Harris, "Highlands of Ethiopia," ii, 94.
- Burton, "Mission to Gelele, King of Dahomie," i, p. 226.
II Bentham's Works, vol. ix, p. 97. From whatever point of view we consider it, Bentham's proposi- tion proves to be unthinkable. Government, he says, fulfills its ofiSce "by creating rights." Two meanings may be given to the word "creating." It may be supposed to mean the production of some- thing out of nothing; or it may be supposed to mean the giving form and structure to something which already exists. There are many who think the production of something out of nothing can not be con- ceived as effected even by Omnipotence; and probably none will assert that the production of something out of nothing is within the competence of a human government. The alternative conception is that such human government creates only in the sense that it shapes something pre-existing. In that case, the question arises, " What is the something pre-existing which it shapes?" Clearly the word "creating " begs the whole question—passes off an illusion upon the unwary reader. Bentham was a stickler for definiteness of expression, and in his " Book of Fallacies " has a chapter on "Impostor-terms." It is curious that he should have furnished so striking an illustration of the perverted belief which an impostor-term may generate.
But now let us overlook these various impossibilities of thought, and seek the most defensible interpretation of Bentham's view.
It may be said that the totality of all possessions, powers, rights, originally existed as an undivided whole in the sovereign people; and that this undivided whole is given in trust (as Austin would say) to a ruling power, appointed by the sovereign people, for the purpose of distribution. If, as we have seen, the proposition that rights are cre- ated is simply a figure of speech, then the only intelligible construc- tion of Bentham's view is that a multitude of individuals, who sever- ally wish to satisfy their desires, and have, as an aggregate, possession of all the sources of satisfaction, as well as power over all individual actions, appoint a government, which declares the ways in which, and the conditions under which, individual actions may be carried on and the satisfactions obtained. Let us observe what are the implications. Each man exists in two capacities. In his private capacity he is sub- ject to the government. In his public capacity he is one of the sov- ereign people who appoint the government. That is to say, in his private capacity he is one of those to whom rights are given \ and in his public capacity he is one of those who, through their agency, give the rights. Turn this abstract statement into a concrete statement, and see what it means. Let the community consist of a million men, who, by the hypothesis, are not only joint possessors of the inhabited region, but joint possessors of all liberties of action and appropriation: the only right recognized being that of the aggregate to everything. What follows? Each person, while not owning any product of his own labor, has, as a unit in the sovereign body, a millionth part of the ownership of the products of all others' labor. This is an unavoid- able implication. No body of men can confer that which it has not got. As the government, in Bentham's view, is but an agent, the rights it confers are rights given to it in trust by the sovereign people. If so, such rights must be possessed en bloc by the sovereign people before the government, in fulfillment of its trust, confers them on indi- viduals; and, if so, each individual has a millionth portion of these rights in his public capacity, while he has no rights in his private ca- pacity. These he gets only when all the rest of the million join to endow him with them; while he joins to endow with them every other member of the million!
Thus, in whatever way we interpret it, Bentham's proposition leaves us in a plexus of absurdities.
Even though ignoring the opposite opinion of the German writers on jurisprudence, and even without an analysis which proves their own opinion to be untenable, Bentham's discijDles might have been led to treat less cavalierly the doctrine of natural rights. For sundry groups of social phenomena unite to prove that this doctrine is well warranted, and the doctrine they set against it entirely unwarranted.
Tribes in various parts of the world show us that before definite government arises, conduct is regulated by customs. The Bechuanas are controlled by "long-acknowledged customs." * Among the Ko- ranna Hottentots, who only "tolerate their chiefs rather than obey them," f "when ancient usages are not in the way, every man seems to act as is right in his own eyes." J The Araucanians are guided by "nothing more than primordial usages or tacit conventions." * Among the Kirghizes the judgments of the elders are based on "universally- recognized customs." 11 So, too, of the Dyaks, Rajah Brooke tells us that "custom seems simply to have become the law; and breaking custom leads to a fine." ^ So sacred are immemorial customs with the primitive man, that he never dreams of questioning their authority; and when government arises, its power is limited by them. In Mada- gascar the king's word suffices only "where there is no law, custom, or precedent." ^ Raffles tells us that in Java " the customs of the country "J restrain the will of the ruler. In Sumatra, too, the people do not allow their chiefs to "alter their ancient usages." J Nay, occa- sionally, as in Ashantee, " the atttempt to change some customs "has caused a king's dethronement. J ^N'ow, among the customs which we
- Burchell, W. J.," Travels into the Interior of Southern Africa," vol. i, p. 544.
f Arbousset and Daumas, "Voyage of Exploration," p. 27.
X Thompson, G., " Travels and Adventures in Southern Africa^" vol. ii, p. 30.
- Thompson, G. A., "Alcedo's Geographical and Historical Dictionary of America,"
vol. i, p. 405.
I Mitchell, Alex., "Siberian Overland Route," p. 248.
^ Brooke's, C, "Ten Years in Sarawak," vol. i, p. 129.
^ Ellis, "History of Madagascar," vol. i, p. 3*77.
X Raffles, Sir T. S., "History of Java," i, 274.
$ Marsden, W., "History of Sumatra," p. 217.
% Beecham, J., "Ashantee and the Gold Coast," p. 90. tlius find to be pre-governmental, and which subordinate governmental power when it is established, are those which recognize certain indi- vidual rights—rights to act in certain ways, and possess certain things. Even where the recognition of property is least developed, there is proprietorship of weapons, tools, and personal ornaments; and, gen- erally, the recognition goes far beyond this. Among such North- American Indians as the Snakes, who are without government, there is private ownership of horses. By the Chippewayans, who have no regular government," game taken in private traps "is considered as private property." * Kindred facts concerning huts, utensils, and other personal belongings, might be brought in evidence from accounts of the Ahts, the Comanches, the Esquimaux, and the Brazilian Indians. Among various uncivilized peoples, custom has established the claim to the crop grown on a cleared plot of land, though not to the land itself; and the Todas, who are wholly without political organization, make a like distinction between ownership of cattle and of land. Kolff's statement respecting " the peaceful Araf uras " well sums up the evidence. They "recognize the right of property in the fullest sense of the word, without there being any authority among them but the decisions of their elders according to the customs of their fore- fathers." t But even without seeking proofs among the uncivilized, sufficient proofs are furnished by early stages of the civilized. Ben- tham and his followers seem to have forgotten that our own common law is mainly an embodiment of "the customs of the realm." It did but give definite shape to that which it found existing. Thus, the fact and the fiction are exactly opposite to what they allege. The fact is that property was well recognized before law existed; the fiction is that "property is the creation of law."
Considerations of another class might alone have led them to pause had they duly considered their meanings. Were it true, as alleged by Bentham, that Government fulfills its office " by creating rights which it confers on individuals"; then, the implication would be that there should be nothing approaching to uniformity in the rights conferred by different governments. In the absence of a determining cause over- ruling their decisions, the probabilities would be many to one against considerable correspondence among their decisions. But there is very great correspondence. Look where we may, we find that govern- ments interdict the same kinds of aggressions; and, by implication, recognize the same kinds of claims. They habitually forbid homicide, theft, adultery: thus asserting that citizens may not be trespassed against in certain ways. And as society advances, minor individual claims are protected by giving remedies for breach of contract, libel, false witness, etc. In a word, comparisons show that though codes of law differ in their details as they become elaborated, they agree in
- Schoolcraft, H. R., "Expedition to the Sources of the Mississippi River," v, IT?,
f Earl's "Kolff's Voyage of the Domga," p. 161. their fundamentals. What does this prove? It can not be by chance that they thus agree. They agree because the alleged creating of rights was nothing else than giving formal sanction and better defini- tion to those assertions of claims and recognitions of claims which naturally originate from the individual desires of men who have to live in presence of one another.
Comparative sociology discloses another group of facts having the same implication. Along with social progress it becomes in an in- creasing degree the business of the State, not only to give formal sanction to men's rights, but also to defend them against aggressors. Before permanent government exists, and in many cases after it is considerably developed, the rights of each individual are asserted and maintained by himself, or by his family. Alike among savage tribes at present, among civilized peoples in the past, and even now in unset- tled parts of Europe, the punishment for murder is a matter of private concern: "the sacred duty of blood revenge " devolves on some one of a cluster of relatives. Similarly, compensations for aggressions on property, and for injuries of other kinds, are in early states of society obtained by each man for himself. But as social organization ad- vances, the central ruling power undertakes more and more to secure to individuals their personal safety, the safety of their possessions, and, to some extent, the enforcement of their claims established by contract. Originally concerned almost exclusively with defense of the society as a whole against other societies, or with conducting its attacks on other societies. Government has come more and more to dis- charge the function of defending individuals against one another. It needs but to recall the days when men habitually carried weapons, or to bear in mind the greater safety to person and property achieved by improved police-administration during our own time, or to note the increased facilities now given for recovering small debts, to see that the securing to each individual the unhindered pursuit of the objects of life within limits set by others' like pursuits, is more and more rec- ognized as a duty of the State. In other words, along with social progress there goes not only a fuller recognition of these which we call natural rights, but also a better enforcement of them by Govern- ment: Government becomes more and more the servant to these essen- tial requirements.
An allied and still more significant change has accompanied this. In early stages, at the same time that the State failed to protect the individual against aggression, it was itself an aggressor in multitudi- nous ways. Those ancient societies which progressed enough to leave records, having all been conquering societies, show us everywhere the traits of the militant regime. As, for the effectual organization of fighting bodies, the soldiers, absolutely obedient, must show no per- sonal independence; so, for the effectual organization of fighting soci- eties, citizens must have their individualities subordinated. Private claims are overridden by public claims, and the subject loses that freedom of action which he had in the primitive state. One result is that the system of regimentation pervading the society as well as the army causes detailed regulation of conduct. The dictates of the ruler, sanctified by ascription of them to his divine ancestor, are un- restrained by any conception of individual liberty; and they specify men's actions to an unlimited extent—down to kinds of food eaten, modes of preparing them, shaping of beards, fringing of dresses, sow- ing of grain, etc. The omnipresent control, which the ancient east- ern nations in general exhibited, was exhibited also in large measure by the Greeks; and was carried to its greatest pitch in the most militant city, Sparta. Similarly during mediaeval days throughout Europe, characterized by chronic warfare with its appropriate political forms and ideas, there were no recognized bounds to Governmental interfer- ence: agriculture, manufacture, trade, were regulated in detail; re- ligious beliefs and observances were imposed; and rulers said by whom only furs might be worn, silver used, books issued, pigeons kept, etc., etc. But along with increase of industrial activities, and implied substitution of the regime of contract for the regime of status, and growth of associated sentiments, there went (until the recent reaction accompanying reversion to militant activity) a decrease of meddling with people's doings. Legislation gradually ceased to regu- late the cropping of fields, or dictate the ratio of cattle to acreage, or specify modes of manufacture and materials to be used, or fix wages and prices, or interfere with dresses and games (except where there was gambling), or put bounties and penalties on imports or exports, or prescribe men's beliefs, religious or political, or prevent them from combining as they pleased, or traveling where they liked. That is to say, throughout a large range of conduct, the right of the citizen to uncontrolled action has been made good against the pretensions of the State to control him. While the ruling agency has increasingly helped him to exclude intruders from that private sphere in which he pursues the objects of life, it has itself retreated from that sphere; or, in other words—decreased its intrusions.
Not even yet have we noted all the classes of facts which tell the same story. It is told afresh in the improvements and reforms of law itself, as well as in the admissions and assertions of those who have effected them. "So early as the fifteenth century," says Professor Pollock, "we find a common-law judge declaring that, as in a case unprovided for by known rules, the civilians and canonists devise a new rule according to ' the law of nature, which is the ground of all laws,' the Courts of Westminster can and will do the like."* Again, our system of equity, introduced and developed as it was to make up for the shortcomings of Common-law, or rectify its inequities, proceeded
- "The Methods of Jurisprudence: an Introductory Lecture at University College,
London," October 31, 1882. throughout on a recognition of men's claims considered as existing apart from legal warrant. And the changes of law now from time to time made after resistance, are similarly made in pursuance of current ideas concerning the requirements of justice; which, instead of being derived from the law are opposed to the law. For example, that recent Act which gives to a married woman a right of property in her own earnings, evidently originated in the consciousness that the natural connection between labor expended and benefit enjoyed, is one which should be maintained in all cases. The reformed law did not create the right, but recognition of the right created the reformed law.
Thus, historical evidences of five different kinds, unite in teaching that, confused as are the popular notions concerning rights, and includ- ing, as they do, much which should be excluded, yet they shadow forth a truth.
Let us now go on to consider the original source of this truth. In a previous paper I have spoken of the open secret, that there can be no social phenomena but what, if we analyze them to the bottom, bring us down to the laws of life; and that there can be no true understand- ing of them without reference to the laws of life. Let us now change the venue, and transfer this question of natural rights from the court of politics to the court of science—the science of life. The reader need feel no alarm; its simplest and most obvious facts will suffice. Let us contemplate first the general conditions to individual life; and then the general conditions to social life. We shall find that both yield the same verdict.
Animal life involves waste; waste must be met by repair; repair implies nutrition. Again, nutrition presupposes obtainment of food.; food can not be got without powers of prehension, and, usually, of loco- motion; and that these powers may achieve their ends, there must be freedom to move about. If you shut up a mammal in a small space, or tie its limbs together, or take from it the food it has procured, you eventually, by persistence in one or other of these courses, cause its death. Passing a certain point, hindrance to the fulfillment of these requirements is fatal. And all this, which holds of the higher animals at large, of course holds of man.
If we adopt pessimism as a creed, and with it accept the implication that life in general being an evil should be put an end to, then there is no ethical warrant for these actions by which life is maintained: the whole question drops. But if we adopt either the optimist view or the meliorist view—if we say that life on the whole brings more pleasure than pain; or that it is on the way to become such that it will yield more pleasure than pain; then these actions by which life is maintained are justified, and there results a warrant for the freedom to perform them. Those who hold that life is valuable, hold, by implication, that men ought not to be prevented from carrying on life-sustainii^^^i^^,» ties. In other words, if it is said to be " right " that they should carry them on, then, by permutation, we get the assertion that they " have a right " to carry them on. Clearly the conception of " natural rights " originates in recognition of the truth that if life is justifiable, there must be a justification for the performance of acts essential to its preservation; and, therefore, a justification for those liberties and claims which make these acts possible.
But being true of other creatures as of man, this is a proposition lacking ethical character. Ethical character arises only with the dis- tinction between what the individual may do in carrying on his life- sustaining activities, and what he may not do. This distinction ob- viously results from the presence of his fellows. Among those who are in close proximity, or even at some distance apart, the doings of each are apt to interfere with the doings of others, and in the absence of proof that some may do what they will without limit, while others may not, mutual limitation is necessitated. The non-ethical form of the right to pursue ends, passes into the ethical form when there is recognized the difference between acts which can be performed without transgressing the limits, and others which can not be so performed.
This, which is the a priori conclusion, is the conclusion yielded €6 posteriori, when we study the doings of the uncivilized. In its vaguest form, mutual limitation of spheres of action, and the ideas and sentiments associated with it, are seen in the relations of groups to one another. Habitually there come to be established certain bounds to the territories within which each tribe obtains its liveli- hood; and these bounds when not respected are defended. Among the Wood-Veddahs, who have no political organization, the small clans have their respective portions of forest; and "these conven- tional allotments are always honorably recognized." * Of the ungov- erned tribes of Tasmania, we are told that "their hunting-grounds were all determined, and trespassers were liable to attack." f And, manifestly, the quarrels caused among tribes by intrusions on one another's territories, tend in the long run to fix bounds and to give a certain sanction to them. As with each inhabited area, so with each inhabiting group. A death in one, rightly or wrongly ascribed to somebody in another, prompts " the sacred duty of blood-revenge"; and though retaliations are thus made chronic, some restraint is put on new aggressions. Like causes and effects were seen in those early stages of civilized societies, during which families or clans, rather than individuals, were the political units; and during which each family or clan had to maintain itself and its possessions against others such. This mutual restraint, which in the nature of things arises between small communities, similarly arises between individuals in each com- munity; and the ideas and usages appropriate to the one are more or less appropriate to the other. Though within each group there is ever
- Tennant, ii, 440. f Bonwick, J., "Daily Life and Origin of the Tasmanians," 83. a tendency for the stronger to aggress on the weaker; yet, generally,
consciousness of the evils resulting from aggressive conduct serves to restrain. Everywhere among primitive peoples, trespasses are followed by counter-trespasses. Says Turner, of the Tannese, "Adultery and some other crimes are kept in check by the fear of club-law." * Fitz- roy tells us that the Patagonian, " if he does not injure or offend his neighbor, is not interfered with by others ": \ personal vengeance being the penalty for injury. We read of the Uaupes that "they have very little law of any kind; but what they have is of strict re- taliation—an eye for an eye and a tooth for a tooth." J And that the lex talionis tends to establish a distinction between what each member of the community may safely do and what he may not safely do, and consequently to give a sanction to actions within a certain range but not beyond that range, is obvious. Though, says Schoolcraft of the Chippewayans, they " have no regular government, as every man is lord in his own family, they are influenced more or less by certain principles which conduce to their general benefit ": * one of the prin- ciples named being recognition of private property.
How mutual limitation of activities originates the ideas and senti- ments implied by the phrase "natural rights," we are shown most dis- tinctly by the few peaceful tribes which have either nominal govern- ments or none at all. Beyond those facts which illustrate scrupulous regard for one another's claims among the Todas, Santals, Lepchas, Bodo, Chakmas, Jakuns, Arafuras, etc., we have the fact that the utterly-uncivilized Wood-Yeddahs, without any social organization at all, "think it perfectly inconceivable that any person should ever take that which does not belong to him, or strike his fellow, or say any- thing that is untrue." || Thus it becomes clear, alike theoretically and historically, that while the positive element in the right to carry on life-sustaining activities originates from the laws of life, that negative element which gives ethical character to it, originates from the condi- tions produced by social aggregation.
So alien to the truth, indeed, is the alleged creation of rights by government, that, contrariwise, rights having been established more or less clearly before government arises, become obscured as govern- ment develops, along with that militant activity which, both by the taking of slaves and the establishment of ranks, produces statits; and the recognition of rights begins again to get definiteness only as fast as militancy ceases to be chronic and governmental power declines.
When we turn from the life of the individual to the life of the society, the same lesson is taught us.
- "Polynesia," p. 86. f "Voyages of the Adventure and Beagle," ii, 167.
% Wallace, A. R., "Travels on Amazon and Rio Negro," p. 499.
- Schoolcraft, "Expedition to the Sources of the Mississippi," v, lYY.
\ B. F., Hartshorne, "Fortnightly Review," Mardi, 1876. See also H. C. Sirr, "Ceylon and the Ceylonese," ii, 21&» Though mere love of companionship prompts primitive men to live in groups, yet the chief prompter is experience of the advantages to be derived from co-operation. On what condition only can co-opera- tion arise? Evidently on condition that those who join their efforts severally gain by doing so. If, as in the simplest cases, they unite to achieve something which each by himself can not achieve, or can achieve less readily, it must be on the tacit understanding, either that they shall share the benefit (as when game is caught by a party of them) or that if one reaps all the benefit now (as in building a hut or clearing a plot) the others shall severally reap equivalent benefits in their turns. When instead of efforts joined in doing the same thing different things are effected by them—when division of labor arises, with accompanying barter of products, the arrangement im- plies that each in return for something which he has in superfluous quantity, gets an approximate equivalent of something which he wants. If he hands over the one and does not get the other, future proposals to exchange will meet with no response. There will be a reversion to that rudest condition in which each makes everything for himself. Hence the possibility of co-operation depends on fulfillment of con- tract, tacit or overt.
Now this which we see must hold of the very first step toward that industrial organization by which the life of a society is maintained, must hold more or less fully throughout its development. Though the militant type of organization, with its system of status produced by chronic war, greatly obscures these relations of contract, yet they re- main partially in force. They still hold between freemen, and between the heads of those small groups, which form the units of early societies; and in a measure they still hold within these small groups themselves; since survival of them as groups, implies such recognition of the claims of their members, even when slaves, that in return for their labors they get sufliciencies of food, clothing, and protection. And when, with diminution of warfare and growth of trade, voluntary co-opera- tion more and more replaces compulsory co-operation, and the carry- ing on of social life by exchange under agreement, partially suspended for a time, gradually re-establishes itself; its re-establishment brings the possibility of that vast elaborate industrial organization by which a great nation is sustained.
For in proportion as contracts are unhindered and the performance of them certain, the growth is great and the social life active. It is not now by one or other of two individuals who contract, that the evil effects of breach of contract are experienced. In an advanced society, they are experienced by entire classes of producers and distributors which have arisen through division of labor; and eventually they are experienced by everybody. Ask on what condition it is that Birming- ham devotes itself to manufacturing hardware, or part of Staffordshire to making pottery, or Lancashire to weaving cotton? Ask how the rural people who here grow wheat and there pasture cattle, find it pos- sible to occupy themselves in their special businesses? These groups can severally do it only if each gets from the others in exchange for its own surplus product, due shares of their surplus products. No longer directly effected by barter, this obtainment of their respective shares of one another's products is indirectly effected by money; and if we ask how each division of producers gets its due amount of the required money, the answer is—by fulfillment of contract. If Leeds makes woolens and does not, by fulfillment of contract, receive the means of obtaining from agricultural districts the needful quantity of food, it must starve, and stop producing woolens. If South Wales smelts iron and there comes no equivalent agreed upon, enabling it to get fabrics for clothing, its industry must cease. And so throughout, in general and in detail. That mutual dependence of parts which we see in social organization, as in individual organization, is possible only on condition that while each part does the particular kind of work it has become adjusted to, it receives its proportion of those materials required for repair and growth, which all the other parts have joined to produce: such proportion being settled by bargaining. Moreover, it is by fulfillment of contract that there is effected a balancing of all the various products of the various needs—the large manufacture of knives and the small manufacture of lancets; the great growth of wheat and the small growth of mustard-seed. The check on undue production of each commodity results from finding that after a certain quantity, no one will agree to take any further quantity on terms that yield an adequate money equivalent. And so there is prevented a useless expenditure of labor in producing that which society does not want.
Lastly, we have to note the still more significant fact that the con- dition under which only, any specialized group of workers can grow when the community needs more of its particular kind of work, is that contracts shall be free and fulfillment of them enforced. If when, from lack of material, Lancashire failed to supply the usual amount of cot- ton-goods, there had been such interference with contracts as prevented Yorkshire from asking a greater price for its woolens, which it was enabled to do by the greater demand for them, there would have been no temptation to put more capital into the woolen manufacture, no increase in the amount of machinery and number of artisans emplo3'ed, and no increase of woolens: the consequence being that the whole community would have suffered from not having deficient cottons re- placed by extra woolens. What serious injury may result to a nation if its members are hindered from contracting with one another, was well shown in the contrast between England and France in respect of railways. Here, though considerable obstacles were at first raised by the legislating classes, the obstacles were not such as prevented capi- talists from investing, engineers from furnishing directive skill, or contractors from undertaking works; and the high interest originally ob- tained on investments, the great profits made by contractors, and the large payments received by engineers, led to that drafting of money, energy, and ability, into railway -making, which rapidly developed our railway-system, to the enormous increase of our national prosperity. But when M. Thiers, then Minister of Public Works, came over to inspect, and having been taken about by Mr. Vignoles, said to him when leaving:—" I do not think railways are suited to France,"* there resulted from the consequent policy of hindering free contract, a delay of " eight or ten years " in that material progress which France expe- rienced when railways were made.
What do all these facts mean? They mean that for the healthful activity and due proportioning of those various industries, professions, etc. which maintain and aid the life of a society, there must, in the first place, be no restrictions on men's liberties to make agreements with one another, and there must, in the second place, be an enforce- ment of the agreements which they do make. As we have seen, the checks naturally arising to each man's actions when men become asso- ciated, are those only which result from mutual limitation; and there consequerftly can be no resulting check to the contracts they volun- tarily make: interference with these is interference with those rights to free action which remain to each when the rights of others are fully recognized. And then, as we have seen, enforcement of their rights implies enforcement of contracts made; since breach of contract is indirect aggression. If, when a customer on one side of the counter asks a shopkeeper on the other for a shilling's worth of his goods, and, while the shopkeeper's back is turned, walks off with the goods without leaving the shilling he tacitly contracted to give, the case dif- fers in no essential way from robbery. Similarly, if analyzed, every breach of contract proves to be a case in which the individual injured is deprived of something he possessed, without receiving the equiva- lent something bargained for; and is in the condition of having ex- pended his labor without getting benefit—^has had an essential condi- tion to the maintenance of life infringed.
Thus, then, it results that to recognize and enforce the rights of individuals, is at the same time to recognize and enforce the condi- tions to a normal social life. There is one vital requirement for both.
Before turning to those corollaries which have practical applica- tions, let us observe how the special conclusions drawn converge to the one general conclusion originally foreshadowed—glancing at them in reversed order.
We have just found that the prerequisite to individual life is in a double sense the prerequisite to social life. The life of a society in
- "Address of C. B. Yignoles, Esq., F. R. S., on his Election as President of the Insti-
tution of Civfl Engineers, Session 1869-'70," p. 53, whichever of two senses conceived, depends on maintenance of indi- vidual rights. If it is nothing more than the sum of the lives of citi- zens, this implication is obvious. If it consists of those many unlike activities which citizens carry on in mutual dependence, still this aggregate impersonal life rises or falls according as the rights of indi- viduals are enforced or denied.
Study of men's politico-ethical ideas and sentiment, leads to allied conclusions. Primitive peoples of various types show us that before governments exist, immemorial customs recognize private claims and justify maintenance of them. Codes of law independently evolved by different nations, agree in forbidding certain trespasses on the persons, properties, and liberties of citizens; and their correspondences imply, not an artificial source for individual rights, but a natural source. Along with social development, the formulating in law of the rights pre-established by custom, becomes more definite and elaborate. At the same time. Government undertakes to an increasing extent the business of enforcing them. While it has been becoming a better pro- tector. Government has been becoming less aggressive—has more and more diminished its intrusions on men's spheres of private action. And, lastly, as in past times laws were avowedly modified to fit bet- ter with current ideas of equity, so now, law-reformers are guided by ideas of equity which are not derived from law but to which law has to conform.
Here, then, we have a politico-ethical theory justified alike by analysis and by history. What have we against it? A fashionable counter-theory which proves to be unjustifiable. On the one hand, while we find that individual life and social life both imply mainte- nance of the natural relation between efforts and benefits; we also find that this natural relation, recognized before Government existed, has been all along asserting and reasserting itself, and obtaining better recognition in codes of law and systems of ethics. On the other hand, those who, denying natural rights, commit themselves to the assertion that rights are artificially created by law, are not only flatly contra- dicted by facts, but their assertion is self-destructive: the endeavor to substantiate it, when challenged, involves them in manifold ab- surdities.
Nor is this all. The reinstitution of a vague, popular conception in a definite form on a scientific basis, leads us to a rational view of the relation between the wills of majorities and minorities. It turns out that those co-operations in which all can voluntarily unite, and in the carrying on of which the will of the majority is rightly supreme, are co-operations for maintaining the conditions requisite to indi- vidual and social life. Defense of the society as a whole against external invaders, has for its remote end to preserve each citizen in possession of such means as he has for satisfying his desires, and in possession of such liberty as he has for getting further means. And defense of each citizen against internal invaders, from murderers down to those who inflict nuisances on their neighbors, has obviously the like end—an end desired by every one save the criminal and disor- derly. Hence it follows that for maintenance of this vital principle, alike of individual life and social life, subordination of minority by majority is legitimate; as implying only such a trenching on the free- dom and property of each, as is requisite for the better protecting of his freedom and property. At the same time it follows that such subordination is not legitimate beyond this; since, implying as it does a greater aggression upon the individual than is requisite for pro- tecting him, it involves a breach of the vital principle which is to be maintained.
Thus we come round again to the proposition that the assumed divine right of parliaments, and the implied divine right of majorities, are superstitions. While men have abandoned the old theory respect- ing the source of State-authority, they have retained a belief in that unlimited extent of State-authority which rightly accompanied the old theory, but does not rightly accompany the new one. Unrestricted power over subjects, rationally ascribed to the ruling man when he was held to be a deputy-god, is now ascribed to the ruling body, the dep- uty-godhood of which nobody asserts.
Opponents will, possibly, contend that discussions about the origin and limits of governmental authority are mere pedantries. "Govern- ment," they may perhaps say, "is bound to use all the means it has, or can get, for furthering the general happiness. Its aim must be utility; and it is warranted in employing whatever measures are needful for achieving useful ends. The welfare of the people is the supreme law; and legislators are not to be deterred from obeying that law by ques- tions concerning the source and range of their power." Is there really an escape here? or may the opening be effectually closed?
The essential question raised is the truth of the utilitarian theory as commonly held; and the answer here to be given is that, as com- monly held, it is not true. Alike by the statements of utilitarian mor- alists, and by the acts of politicians knowingly or unknowingly follow- ing their lead, it is implied that utility is to be directly determined by simple inspection of the immediate facts and estimation of probable results. Whereas, utilitarianism as rightly understood, implies guid- ance by the general conclusions which analysis of experience yields. "Good and bad results can not be accidental, but must be necessary consequences of the constitution of things"; and it is "the business of Moral Science to deduce, from the laws of life and the conditions of existence, what kinds of action necessarily tend to produce happiness, and what kinds to produce unhappiness." * Current utilitarian specu- lation, like current practical politics, shows inadequate consciousness of natural causation. The habitual thought is that, in the absence of
- "Data of Ethic3," § 21, and §§ 66-62. some obvious impediment, things can be done this way or that way;
and no question is put whether there is either agreement or conflict with the normal working of things.
The foregoing discussions have, I think, shown that the dictates of utility, and, consequently, the proper actions of governments, are not to be settled by inspection of facts on the surface, and acceptance of their prima facie meanings; but are to be settled by reference to, and deduction from, fundamental facts. The fundamental facts to which all rational judgments of utility must go back, are the facts that life consists in, and is maintained by, certain activities; and that among men in a society, these activities, necessarily becoming mutually lim- ited, are to be carried on by each within the limits thence arising, and not carried on beyond those limits: the maintenance of the limits be- coming, by consequence, the function of the agency which regulates society. If each, having freedom to use his powers up to the bounds fixed by the like freedom of others, obtains from his fellow-men as much for his services as they find them worth in comparison with the services of others—if contracts uniformly fulfilled bring to each the share thus determined, and he is left secure in person and possessions to satisfy his wants with the proceeds; then there is maintained the vital principle alike of individual life and of social life. Further, there is maintained the vital principle of social progress; inasmuch as un- der such conditions, the individuals of more worth will prosper and multiply more than those of less worth. So that utility, not as em- pirically estimated, but as rationally determined, enjoins this mainte- nance of individual rights; and, by implication, negatives any course which traverses them.
Here, then, we reach the ultimate interdict against meddling legis- lation. Reduced to its lowest terms, every proposal to interfere with citizens' activities further than by enforcing their mutual limitations, is a proposal to improve life by breaking through the fundamental conditions to life. When some are prevented from buying beer that others may be prevented from getting drunk, those who make the law assume that more good than evil will result from interference with the normal relation between conduct and consequences, alike in the few ill-regulated and the many well-regulated. A government which takes fractions of the incomes of multitudinous citizens for the pur- pose of sending to the colonies some who have not prospered here, or for building better industrial dwellings, or for making public libraries and public museums, etc., etc., takes for granted that, not only proxi- mately but ultimately, increased general happiness will result from transgressing the essential requirement to general happiness—the re- quirement that each shall enjoy all those means to happiness which his actions, carried on without aggression on others, have brought him. In other cases we do not thus let the immediate blind us to the remote. We do not when asserting the sacredness of property against private aggressors, ask whether the benefit to the hungry man who takes bread from a baker's shop, is or is not greater than the injury inflicted on the baker: we consider not the special effects but the general effects which arise if property is insecure. But when the State exacts further amounts from individuals, or further restrains their liberties, we con- sider only the direct and proximate effects, and ignore the indirect and distant effects which arise when these invasions of individual rights are continually multiplied. We do not see that by accumulated small infractions of them, the vital conditions to life, individual and social, come to be so little fulfilled that the life decays.
Yet the decay thus caused becomes manifest where the policy is pushed to an extreme. Any one who studies, in the writings of MM. Taine and De Tocqueville, the state of things which preceded the French Revolution, will see that that tremendous catastrophe came about from so excessive a regulation of men's actions in all their de- tails, and such an enormous drafting away of the products of their actions to maintain the regulating organization, that life was fast be- coming impracticable. The empirical utilitarianism of that day, like the empirical utilitarianism of our day, differed from the rational utilitarianism in this, that it contemplated only the effects of particu- lar interferences on the actions of particular classes of men, and ignored the effects produced by a multiplicity of such interferences upon the lives of men at large. And if we ask what then made, and what now makes, this error possible, we find it to be the political superstition that governmental power is subject to no restraints.
When that " divinity " which "doth hedge a king," and which in our day has left a glamour around the body inheriting his power, has quite faded away—when it begins to be seen clearly that, in a popu- larly-governed nation, the government is simply a committee of man- agement; it will also be seen that this committee of management has no intrinsic authority. The inevitable conclusion wdll be that its au- thority is given by those appointing it; and has just such bounds as they choose to impose. Along with this will go the further conclusion that the laws it passes are not in themselves sacred; but that what- ever sacredness they have, is entirely due to the ethical sanction—an ethical sanction which, as we find, is derivable from the laws of hu- man life as carried on under social conditions. And there will come the corollary that when they have not this ethical sanction they have no sacredness, and may rightly be challenged.
The function of Liberalism in the past was that of putting a limit to the powers of kings. The function of true Liberalism in the future will be that of putting a limit to the powers of Parliaments.