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limitation of spheres of action, and the with by others :"* personal vengeance ideas and sentiments associated with it, being the penalty for injury. We read are seen in the relations of groups to one of the Uaupés that "they have very another. Habitually. there come to be little law of any kind; but what they established, certain bounds to the terri- have is of strict retaliation-an eye for tories within which each tribe obtains its an eye and a tooth for a tooth." And livelihood; and these bounds when not that the lex talionis tends to establish a respected are defended. Among the distinction between what each member Wood-Veddahs, who have no political of the community may safely do and organization, the small clans have their what he may not safely do, and conserespective portions of forest; and quently to give sanctions to actions 66 these conventional allotments are within a certain range but not beyond always honorably recognized."* Of the that range, is obvious. "Of Though, says ungoverned tribes of Tasmania, we are Schoolcraft of the Chippewayans, they told that their hunting grounds were "have no regular government, as every all determined, and trespassers were man is lord in his own family, they are liable to attack." And, manifestly, influenced more or less by certain printhe quarrels caused among tribes by in- ciples which conduce to their general trusions on one another's territories, benefit :" one of the principles named tend, in the long run, to fix bounds and being recognition of private property. 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 community; and the ideas and usages appropriate to the one are more or less appropriate to the other. Though within each group there is ever a tendency for the stronger to aggress on the weaker; yet, in most cases, 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." Fitzroy tells us that the Patagonian, "if he does not injure or offend his neighbor, is not interfered
* Tennant, ii. 440.
Bonwick, J., "Daily Life and Origin of the Tasmanians," 83. Polynesia, p. 86.
How mutual limitation of activities originates the ideas and sentiments implied by the phrase "natural rights, we are shown most distinctly by the few peaceful tribes which have either nominal governments 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-Veddahs, 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 anything that is untrue."§ Thus it becomes clear, alike from analysis of causes and observation of facts, 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 conditions produced by social aggregation.
So alien to the truth, indeed, is the alleged creation of rights by government, that, contrariwise, rights having been
*" Voyages of the Adventure Beagle, ii. 167.
† Wallace, A. R., “ Travels on Amazon and Rio Negro," p. 499.
Schoolcraft, "Expedition to the Sources of the Mississippi," v. 177.
SB. F.. Hartshorne, Fortnightly Review, March 1876. See also H. C. Sirr, Ceylon and the Ceylonese, ii. 219.
established more or less clearly before government arises, become obscured as government develops along with that militant activity which, both by the taking of slaves and the establishment of ranks, produces status; 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.
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 cooperation. On what condition only can co-operation 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 cannot 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 implies 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 fulfilment of contract, 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 remain partially in force. They still hold be
tween 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 sufficiencies of food, clothing, and protection. And when, with diminution of warfare and growth of trade, voluntary co-operation more and more replaces compulsory co-operation, and the carrying 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 perienced by everybody. Ask on what condition it is that Birmingham 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 possible to occupy themselves in their special businesses. These groups can severally thus act only if each get 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 fulfil
of contract. If Leeds makes woollens and does not, by fulfilment of contract, receive the means of obtaining from agricultural districts the needful quantity of food, it must starve, and stop producing woollens. 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 fulfilment of contract that there is effected a balancing of all the various products to the various needs-the large manufacture of knives and the small manufacture of lancets; the great growth of wheat and the little growth of mustardseed. 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 condition 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 fulfilment of them enforced. If when, from lack of material, Lancashire failed to supply the usual amount of cottongoods, there had been such interference with contracts as prevented Yorkshire from asking a greater price for its woollens, which it was enabled to do by the greater demand for them, there would have been no temptation to put more capital into the woollen manufacture, no increase in the amount of machinery and number of artisans employed, and no increase of woollens: the consequence being that the whole community would have suffered from not having deficient cottons replaced by extra woollens. 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 obstacles were at first raised by classes predominant in the legislature, the obstacles were not such
as prevented capitalists from investing, engineers from furnishing directive skill, or contractors from undertaking works; and the high interest originally obtained 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 experienced when railways were made.
What do all these facts mean? They mean that for the healthful activity and due proportioning of those industries, occupations, professions, which maintain and aid the life of a society, there must, in the first place, be few restrictions on men's liberties to make agreements with one another, and there must, in the second place, be an enforcement of the agreements which they do make. As we have seen, the checks naturally arising to each man's actions when men become associated, are those only which result from mutual limitation; and there consequently can be no resulting check to the contracts they voluntarily 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, his act differs in no essential way from robbery. In each such case the individual injured is deprived of something he possessed,
* Address of C. B. Vignoles, Esq., F. R. S., on his Election as President of the Institution of Civil Engineers, Session 1869-70, p. 53.
without receiving the equivalent something bargained for; and is in the state of having expended his labor without getting benefit-has had an essential condition 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 conditions to a normal social life. There is one vital requirement
Before turning to those corollaries which have practical applications, 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 pre-requisite to social life.
The life of a society in whichever of two senses conceived, depends on maintenance of individual rights. If it is nothing more than the sum of the lives of citizens, 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 individuals are enforced or denied.
Study of men's politico-ethical ideas and sentiments, 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 protector, 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 better 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 maintenance 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 re-asserting 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 contradicted by facts, but their assertion is self-destructive: the endeavor to substantiate it, when challenged, involves them in manifold absurdities.
Nor is this all. The re-institution 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 cooperations for maintaining the conditions requisite to individual and social life. Defence 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 defence 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 disorderly. 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 freedom 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 protect ing 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 respecting 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 deputy-godhood of which nobody as
Opponents will, possibly, contend that discussions about the origin and limits of governmental authority are mere pedantries." Government," 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 questions concerning the source and range of their power. Is there really an escape here? or may this 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 commonly held, it is not true. Alike by the statements of utilitarian moralists, and by the acts of politicians knowingly or unknowingly following 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 guidance by the general conclusions which analysis of experience yields. Good and bad results cannot be accidental, but must be necessary consequences of the constitution of things;" and it is "the business of
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 primâ 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 limited, are to be carried on by each within the limits thence arising, and not carried on beyond those limits : the maintenance of the limits becoming, 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, under such conditions, the individuals of most worth will prosper and multiply more than those of less worth. So that utility, not as empirically estimated but as rationally determined, enjoins this maintenance of individual rights; and, by implication, negatives any course which traverses them.