THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA RIVERSIDE i£.v '7^l-*K<:''- '^-^^^r^r Xibrar^ of pbiloeoph^* EDITED BY J. H. MUIRHEAD, M.A. THR [.IBRARY OF PHILOSOPHY. riiL LIBRARY OF PHILOSOPHY is in the first in- stance a contribution to the History of Thought. While much has been done in England in tracing the course of evolu- tion in nature, history, religion, and morality, comparatively little has been done in tracing the development of Thought ui)on these and kindred subjects, and yet " the evolution of opinion is part of the whole evolution." This Library will deal mainly with Modern Philosophy, j)artly because Ancient Philosophy has already had a fair share of attention in this country through the labours of Grote, Ferrier, and others, and more recently through translations from Zeller ; partly because the Library does not profess to give a complete history of thought. By the co-operation of different writers in carrying out this jjlan, it is hoped that a completeness and thoroughness of treat- ment otherwise unattainable will be secured. It is believed, ;ilso, that from writers mainly English and American fuller consideration of English Philosophy than it has hitherto re- ceived from the great German Histories of Philosophy may be looked for. In the departments of Ethics, Economics, and Politics, for instance, the contributions of Encrlish writers to the common stock of theoretic discussion have been especially valuable, and these subjects will accordingly have special pro- minence in this undertaking. Another feature in the plan of the Library is its arrange- ment according to subjects rather than authors and dates, enabling the writers to follow out and exhibit in a way hitherto unattempted the results of the logical development of particular lines of thought. The historical portion of the Library is divided into two sections, of which the first contains works upon the develop- ment of particular schools of Philosophy, while the second ex- hibits the history of theory in particular departments. The tiiird series contains original contributions to Philosophy, and ihe fourth translations of valuable foreign works. To these has been added, by way of Introduction to the whole Library, an English translation of Erdmann's " History of Philosophy," long since recognised in Germany as the best. J. H. MUIRHEAD, ii General Editor. ALREADY PUBLISHED. The History of Philosophy. By Dr. Johan'x Eduard Erdmank. English Translation. Edited by Willistov S. Hough, M.Ph., Professor of Mental and Moral Philosophy and Logic in the University of Minnesota. In 3 vols., medium 8vo, cloth. Vol. I. Ancient and Mediaeval Philosophy, 155. . . . Third Edition. Vol. H. Modern Philosophy, 15? Third Edition. Vol. in. Modern Philosophy since Hegel, 1 2.f. . . . Third Edition. The History of .Esthetic. By Bernard Bosanquet, M.A., LL.D., late Fellow of University College, Oxford. [Second Series. The Development of Rational Theology since Kant. By Professor Otpo Pfleiderer, of Berlin. [Second Series. Second Edition. Philosophy and Political Economy in some of their Historical Relations. By James Bonar, M.A., LL.D. [Second Series. Appearance and Reality. By F. H. Bradley, M.A., Fellow of Merton College, Oxford. Natural Rights. By David G. Ritchie, Professor of Logic and Metaphysics in the University of St. Andrews. [Third Series. SiGWAJix's Logic. Translated by Helen Dendy. 2 vols. [Fourth Series. LIST OF WORKS IN PREPARATION. FIRST SERIES. Early Idealism: Descartes to Leibnitz. By W. L. Courtney, M.A., LL.D. (St. Andrews), Fellow of New College, Oxford. German Idealists: Kant to Hegel. By Wm. Wallace, M.A., Whyte Professor of Moral Philosophy, University of Oxford. MoDKRN Realists: Leibnitz, Herbart, Lotze. By Andrew Seth, M.A., Professor of Logic and English Literature, University of Edinburgh. Sensationalists: Locke to Mill. By W. S. Hough, M.Ph., Professor of Mental and Moral Philosophy, University of Minnesota. U.S.A. The Utilitarians : Hume to Contemporary Writers. By W. R. Sorley, M. A., Fellow of Trinity College, Cambridge, and Professor of Philo.sophy in University College, Cardiff. Principle of Evolution in its Scientific and Philosophical Aspects. liy John Watson, LL.D., Professor of Moral Philosophy, University of Queen's College, Kingston, Canada. SECOND SERIES. The History of Psychology : Empirical and Rational. By Robert Adamson, M.A., LL.D., Professor of Logic, University of Aberdeen. The History of Political Philosophy. By D. G. Ritchie, M.A., Professor of Logic and Metaphysics in the University of St. Andrews, and J. H. Muirhead, M. A., Lecturer in Philosophy, Royal Holloway College, Egham, and Bedford College, London. The History of the Philosophical Tendencies of the Nineteenth Century. By Josiah Royce, Professor of Philo.sophy, Harvard University. THIRD SERIES. First Principles of Philosophy. By John Stuari' Mackenzie, M..\., Fellow of Trinity College. Cambridge. The Theory of Ethics. By Edward Caird, LL.D., Master of Balliol College, Oxford. Epistemology ; or, The Theory of Knowi.edc;e. By James Ward, D.Sc, LL.D., Fellow and Lecturer of Trinity College, Cambridge. Principles of Psychology. By G. F. Stout, M.A., Fellow of St. John's College, Cambridge. [Shortly. Principles of In.strumental Logic. By John Dewey, Ph.D., Professor of Philo- sophy, University of Michigan. SWAN SONNENSCHEIN & Co., LONDON. MACMILLAN & Co., NEW YORK. NATURAL RIGHTS A CRITICISM OF SOME POLITICAL AND ETHICAL CONCEPTIONS DAVID G. RITCHIE M.A. Professor of Logic and Metaphysics in the University of St. Andrcivs Late Fellow and Tutor of Jesus College, Oxford; Author of " Darwin and Hegel," etc 3LonlJon SWAN SONNENSCHEIN & CO NEW YORK: MACMILLAN & CO 1895 Q.C57' BCIXER & Tanneb, The Selwood Printing Works, Frome, and London. go E. S. H. R. PREFACE When I began, some three years ago, to write a paper on " Natural Rights," which has grown by degrees into the present volume, I had a certain fear that in criticising that famous theory I might be occupied in slaying the already slain. Recent experience has, however, convinced me that the theory is still, in a sense, alive, or at least capable of mischief. Though disclaimed by almost all our more careful writers on politics and ethics, it yet remains a common- place of the newspaper and the platform, not only in the United States of America, where the theory may be said to form part of the national creed, but in this country, where it was assailed a century ago by both Burke and Bentham. If it be suggested that an ex- posure of fallacies, which have survived the attack of two critics so great and of such diverse genius, is either futile or superfluous, I should answer that I hope I have approached the theory in a spirit more appreciative and sympathetic than was possible to the eloquent passion of Burke, or to the keen, cold, abstractly logical analysis of Bentham. At least, I have endeavoured to regard the theorj'- in the light of its historical significance ; for it is never sufficient to argue that a widely held opinion is erroneous without trying to show how and why it came to be widely held. What I have attempted is simply a contribution to an historical and critical analysis of a set of conceptions which have had, for good and evil, an enormous influence in the region of practical politics and legislation. The study is but a fragment of political philosophy ; and even in itself it is inevitably incomplete. Illustrations and applications might have been multiplied indefinitely ; and any selection must always seem arbitrary to some readers. The subject of " liberty of thought " has been discussed at what may seem disproportionate length ; but it appeared to me one of the most suitable for the sake of illustration, and the treatment accorded to it is, after all, not very lengthy. Chapter VIII. will serve its purpose best, if it should help to provoke some competent historical student to undertake an history of the practice and of the idea of toleration, on which I have only given a few jottings. In writing on any political subject, however scientific and academic PREFACE When I began, some three years ago, to write a paper on "Natural Rights," which has grown by degrees into the present volume, I had a certain fear that in criticising that famous theory I might be occupied in slaying the already slain. Recent experience has, however, convinced me that the theory is still, in a sense, alive, or at least capable of mischief. Though disclaimed by almost all our more careful writers on politics and ethics, it yet remains a common- place of the newspaper and the platform, not only in the United States of America, where the theory may be said to form part of the national creed, but in this country, where it was assailed a centmy ago by both Burke and Bentham. If it be suggested that an ex- posure of fallacies, which have survived the attack of two critics so great and of such diverse genius, is either futile or superfluous, I should answer that I hope I have approached the theory in a spirit more appreciative and sympathetic than was possible to the eloquent passion of Burke, or to the keen, cold, abstractly logical analysis of Bentham. At least, I have endeavoured to regard the theorj'- in the light of its historical significance ; for it is never sufficient to argue that a Avidely held opinion is erroneous withoiit trying to show how and why it came to be widely held. What I have attempted is simply a contribution to an historical and critical analysis of a set of conceptions which have had, for good and evil, an enormous influence in the region of practical politics and legislation. The study is but a fi-agment of political philosophy ; and even in itself it is inevitably incomplete. Illustrations and applications might have been multiplied indefinitely ; and any selection must always seem arbitrary to some readers. The subject of " liberty of thought " has been discussed at what may seem disproportionate length ; but it appeared to me one of the most suitable for the sake of illustration, and the treatment accorded to it is, after all, not very lengthy. Chapter VIII. will serve its purpose best, if it should help to provoke some competent historical student to undertake an history of the practice and of the idea of toleration, on which I have only given a few jottings. In writing on any political subject, however scientific and academic X FRF. FACE oue may seek to be, it is impossible to avoid matters of practical controversy or to escape all suspicion of partisanship. I would only ask fair-minded readers to take no one passage as conveying my opinions apart from qualifications expressed or implied in what is said elsewhere in the volume. Conservative, Liberal, Radical, Socialist, may each, amid much to dissent from, find something with which he may agree; and I think this ought to be so, for each of them represents some aspect of political truth neglected by the others. The only political theorists whom I expect to dissent from everything I have written are Anarchists, whether calling themselves such, or by one of the other four names. Anarchism is the creed of unreason in politics, and is a political philosophy only in the sense in which absolute scepticism may be called a metaphysical system. For much of the historical material that I have used in this book I am indebted, directly or indirectly, to the kind help of special students of history, whom I have the good fortune to count among my friends. Of these I ought particularly to name Mr. Charles H. Firth. For many valuable suggestions I have to thank my friend Mr. J. H. Muirhead, who, as editor of this Series, has read the book through, both in MS. and in proof. And in every stage of the work I owe more than I can fittingly express here to the advice, encourage- ment and criticisms of ray wife. Bat for all errors and shortcomings I must myself accept the full responsibility. The book has been written at intervals, and amid many interruptions and much pressure of other work. Yet I trust that it may be of some interest to the general reader, as well as of some use to the special student of ethica and politics. None of it has appeared in print before, except the short chapter on " The Rights of Property," which was published, in an Italian translation, in ha Riforma Sociale of May, 1894. The appendix is given for the convenience of the student. It con- tains the two oldest of the American Declarations of Natural Rights, and all the French Declarations, as the latter are not very easily accessible in this country. The translation of the Declaration of 1789, which appears in Paine's Rights of Man ^ is inserted, as possess- ing an historical interest on its own account. St. Andrews, Octobtr, 1894. CONTENTS Part I. — The Theory of Natural Eights. IPTEB PAGES f. The Principles of "89 :5-19 The " Rights of Man " not first proclaimed in the French Declarations, 3; already formvilated in America, 4; the Virginia "Bill of Rights," 4, 5; these principles derived from Locke, 6; implicit in Protestantism,?; Wycliffe and John Ball, 8 ; the " Levellers," 8, 9. Transi- tion from historical to " natural " rights among English Puritans, 10; among American colonists, 10, 11 ; natural rights pictured as quasi-historical, 11-13. The appeal to Nature is (1) an appeal against external authority, 13 ; and (2) an appeal to the judgment of the individual, 14. The theory of natural rights maj- become the creed of the Anarchist, but also of the Con- servative individualist, 14-16 ; how revolutionary creeds become conservative— the dialectic movement of history, 16-18; illustration from Calvinism, 18, 19. Plan of following chapters, 19. II. On the History of the Idea of " Nature " in Law and Politics 20-47 Ambiguity of the word "natural," 20. The Greek Sophists the forerunners of the eighteenth century Rationalists, 21-25; the antithesis of "nature" and " convention," 24-27. Aristotle's conception of nature, 27 ; his different uses of the term, 28 ; examination of passages that seem to contain the idea of a " law of nature," 29-32. The Cynics, and their " return to nature," 32, 33. The Stoic conception of nature, 33-35. Cicero, 85, 36. Roman Law, 36, 37 ; jus naf urate and jvs gentium, 38. Influence of Roman legal ideas on Western thought, 38,39; Thomas Aquinas, 39, 40 ; the Roman conception of jus naturale favourable to legal reform, 40, 41 ; its influence on International Law, 41 ; OIL, politics and .ethics, 41. The "State of Nature" in'/Hobbes-^Loc'ke, Pope, Rousseau, 42-44. "Natural Theology " (in Adam Smith, etc.), 44, 45. Influence of Natural Science on Mr. Herbert Spencer, who defends "natural rights," 45, 46. " Biological rights," 46, 47. CONTENTS CHAPTKK PAGES III. Rousseau and Rousseauism 48-70 Rousseau's opinion of civilisation iu his Contrat Social contrasted with that in his earlier writings, 48-51. '" Rousseauism "—the " return to nature," etc.— derived from these earlier writings, 51 ; not properly " Socialist," but individualist or anarchist, 52. Civilisation, its elements, 53-56; city life and the love of nature, 56-59. Truth and falsehood in the revolt against civilisation, 59. The cult of the savage, 60-62. The burden of civilised life, 63, 64. Types of Anarchists, 65, 66. Abstract think- ing, 66-68. Antithesis between nature and man, 68-70 ; its falsehood, 70. IV. De DivisioxE Natur.k 71-77 I. Nature as the totality of what exists ; (a) Natura naturans, (b) Natura naturata, 71-74. II. The " natural" as opposed to the human or artificial, 74. III. The " natural " as the original, 74, 75. IV. The " natural " as the normal or the ideal, 75. Confusion between these meanings, 75, 76. Another grouping of meanings sug- gested, 77. \. What Determines Rights'? 78-ll(; Definition of a legal right, 78 ; of a moral right, 78-80. Natural rights not identical with moral rights ; they are the more fundamental rights which would be guaranteed by a society which was as it ought to be, 80, 81. What determines this "ought"? (1) Authority? 82-85; (2) Nature, i.e. individual conscience or sentiment ? 85-87 ; (3) Utility or Reason ? 87. Conflicting interpretations of " the law of nature " illustrated from opinions about polygamy: Father Rickaby, 88-90; Grotius, 90; Locke, 90-92; Lorimer, 92, 93 ; Shelley, 93. Is Utility an equally uncertain guide? 94; defects of Bentliamist Utilitarianism, 94-9(). Tliese defects disappear, if, instead of feelings of pleasure and pain taken abstractly, the Universal Ego or Reason be made the metaph3'sical basis of ethics, 96, 97. Transi- tion from Individualist to Evolutionist Utilitarianism, 97 101. Rights dependent on Society, 101-103. The evolutionist manner of judging institutions, e.cj. slavery, 103, 104 ; industrial competition, 104, 105. Advantage of appealing to reason and experience, rather than to '■ Nature," 105, 106. Some questions connected with the foregoing : Have the lower animals rights ? 107-111. The notion of progress, 111-114. The place of individual rights (1) in political theory ; (2) in constitutional law, 115, 116. CONTENTS xiii Pakt II. — Particular Natural Rights. CHAPTER PiGES VI. The Right of Life 119-134 (a) The instinct of self-preservation, 110, 120. Does this give rise to a natural right in the individual against society ? 120-122 ; or in the societj-, as a whole, against other societies ? 122-121. (&) Does the right to preserve imply the right to end life? Opinions on suicide, 124-126. (c) The right of " enjoying " life, 127. {d) Is there a right to be well-born ? The rights of the unborn, 127-134. VII. The Right of Liberty : Liberty of Thought . . 135-156 The terms " liberty " and " freedom," their ambiguitj^, 135-138. Difference between negative and positive liberty, 138, 139. Positive liberty cannot exist apart from the State, 139, 140. The formula of " equal liberty," 141, 142 ; difficulty in applying it as the principle of justice, 143-145. Limitation of individual liberty in the French Declarations of Rights, 145, 146. The limitation must be other than the equal liberty of other individuals, 146, 147. Liberty of thought, in its literal sense, 147, 148 ; in the positive sense of intellectual freedom it implies the exist- ence of a strong government, 148, 149. Religious and civil liberty not always found together, 149, 150. Liberty of the press in the French Constitutions, 150, 151 ; in England dependent solely on the abolition of the censor- ship and on trial by jury, 151-155. Moral value of a formal declaration of the right, 156. VIII. Toleration 157-209 The term "Toleration" defended, 157-159. What is "persecution"? 159, 160. Some limits to libertj^ of speech and writing, as well as of action, required every- where, 161. The teaching of Thomas Aquinas and his followers on the repression of heresy, 161-164; Father Eickaby on " liberty of opinion," 164-167. The grounds of persecution : (1) tribal, 168 ; (2) political, 168, 169 ; (3) theological — to defend the truth : Christianity and persecution, 169-173. Locke's Letters on Toleration do not meet the real principles of con- scientious persecutors, 173-175 ; Locke's limits to tolera- tion, 175, 176; compared with Rousseau's "Civil religion," 176. Political character of persecution in the early Roman Empire and in Elizabethan England, 176-178. Comparison of the Swiss and American con- stitutional guarantees of religious liberty, 178-180. Ex- tent of practical liberty in Great Britain, 180, 181. (4) Social grounds of persecution hardly separable from the others, 181, 182. (iv CONTENTS Need of an historical spirit in judging of the past, 182. Growth of the practice of toleration, 183. The principle of toleration implies a change of opinion as to what is socially expedient or as to what is essential in religion, 184, 185. Principles of intolerance may coexist with mildness in practice, 185. Ought the intolerant to be tolerated? — Opinions of Locke, Rousseau, Renan, 185-188. Limits of toleration, 188. Toleration in matters affecting morality, 189-198. Difference between religious belief and morality, 189 ; difficulty of estimating moral superiority, 190; the test of seriousness in literature and art, 191-193; new ideas must struggle, 193; what minorities may fairly claim, 194, 195. The duty of private judgment, 196. The claims of Authority, 197. Note A. — Religious Persecution and Toleration : Some Historical Illustrations 198-202 Hallaiii on the persecutions of Elizabeth's reign, 198; Burleigh's defence of his ti-eatment of Roman Catholics, 198,199; Hallam's five degrees of religious persecution, 200. The Declaration of Breda, 200. The " Instrument of Government," 200. Roger Williams, the champion of " soul-liberty" in principle and practice, 201, 202. Note B.— Measures for Suppressing Mormonism in the United States 202-209 Reasons for treating of the question, 202, 203. Legisla- tion against polygamy, 204-207. Test-oath imposed on voters, 207-209. IX. The Rights of Public Meeting and Association . 210-226 The right of public meeting in France, 210, 211 ; in Belgium, 211. The attitude of English law to public meetings, 211-214. Voluntary associations, how different from the State, 214-217. The family, 217; the Church (the " liberty of the Church," " free Churches "), 218-221 ; trading corporations, 221 ; Trade-Unions, 221-225. Prob- lems for a Socialistic State, 224-226. X. Freedom of Contract, National Freedom, etc. . 227-237 No absolute right of contract, 227. Must the State enforce all the contracts it has permitted? 228. The United States constitution prohibits the States from impairing contract-obligations, 229. The droit du travail, 229, 230 ; the droit au travail, 230, 231. National freedom or independence, 232. Is there a right of aggression? 233, 234, " International burglaries," 234. No general principle of non-intervention, 235. The right to restrict immigration, 236, 237. CONTENTS XV CUAPTBB PIRKS XI. Resistance to Oppression 238-243 The right of resistance in the French and American Declarations, 238, 239. A constitutional right of re- bellion belongs to a verj^ primitive type of political existence, 239, 240. The Pope as judge of tyrants, 240. Constitutions regarded as compacts, 241 ; the South Carolina Declaration of Independence, 241, 242. The ethics of rebellion, 248. XII. Equality 244-2G2 Natural right of equality in French and American Declai-ations, 244. The natural equality of man accord- ing to Hobbes, 245 ; and Locke, 246. The natural in- equality of man not alwa.ys an argument for political inequality, 246-248. The idea of equality aristocratic in origin, 248. Bentham assumes equality, 249. Hedonist Utilitarianism in its strict form might justify inequality in some cases, equality in others, 249-251. Ethics based on human rationality, can regard men, qua men, as all potentially sharers in the same ideals, 251, 252. Kant's formula for the moral law, 252, 253. Every human being a " person," if humanity is regarded as a possible society, 253, 254. The ideal of equality, how far due to Christianity, 254. Equality before the law, 255. Equality in political rights, 255. Property qualifications for the suffrage, 255, 256 ; educational qualifications, 256, 257. The suffrage as a duty : compulsory voting, 257, 258. Negative equality, ?'.e. free competition, accentuates inequality of social condition, 258. Equality of social condition would require State-interference with the familj', 259, 260 ; still more would equality of the sexes, if it included the economic independence of women, 260, 261. Plato's ideal — the State as one family, 262. XIII. The Right of Property 263-271 Ambiguity in the phrase " right of property." What does Property imply ? 263, 264. The definitions and limitations of property rights in the rival constitutions of Kansas (1857-58), 264; in the French Declarations, 265 ; in the United States Constitution, 265. The theory basing property on occupation, 266-268. Locke's theory, basing property on labour, 268-271 ; Mr. Henry George versus the Pope, 270, 271. XIV. The Right of Pursuing and Obtaining Happiness 272-286 "Pursuing" and "obtaining" distinguished; Happi- ness as the end of government, 272-275. Conclusion : Aim not directly practical, but scientific or philosophical, i.e. critical, 275, 276. The Socialistic tendencies of our age, 276, 277. Progress must be gradual, 277-282; "bourgeois" interest in civilisation, xvi CONTENTS FAGK8 278 ; need of international solidaritj^, 279 ; fallacious remedies, 280; continued importance of political qties- tions, 280, 281 ; moral proj?ress must accompany political, 281, 282 ; delusion of finality, 282. Objection of the pessimist, 282-284. Faith in the rationality of the world is implied in social effort, 284, 285 ; and should exclude contempt for the past and present, 285, 286. APPENDIX. The Virginian Declaration of Eights — June 12, 1776. 287 Extract from the Declaration of Independence— July 4, 1776 289 French Declaration of Eights of 1789 (Constitution of 1791), WITH Painb's Translation .... 290 French Declaration of Eights of 1793 . . . 294 French Declaration of Eights and Duties of 1795 . 297 Preamble to French Constitution of 1848 . . . 299 Index 301 PART I THE THEORY OF NATURAL RIGHTS CHAPTER I THE PRINCIPLES OF '89 " The principles of 1789 " were embodied in the Declaration of the Rights of Man, which was prefixed to the Constitution promulgated in 1791. They are often spoken of, b}^ those who admire and by those who reject them, as if they were the distinctive and peculiar creed of the French Revolution. But France deserves neither the credit nor the blame of endeavouring to express for the first time, and for all time, in a few abstract phrases the political and social faith on which her institutions were to be founded and built up, France has suffered more than any nation because of this creed of liberty and equality that she proclaimed in the face of the world ; but her critics, among whom may now be found many Frenchmen as well as Englishmen and Germans, are guilty of historical inaccuracy, if, on the evidence of this creed, they contrast the foolish abstractions of the Gallic spirit with the prudent positivism of those whom they are pleased to call "Anglo-Saxons." If the French may be blamed at all in the matter, there is more ground for alleging that they simply plagiarised " Anglo-Saxon " formulas. Every article in the French revolutionary creed had been already formulated — and often (as will be shown in detail) in less carefully guarded phraseology — by the emancipated "Anglo-Saxons " on the other side of the Atlantic. When Lafa3^ette sent the key of the destroyed Bastille by Thomas Paine to George Washington, he was, in a picturesque symbol, confessing the debt of France to America.^ It is true that neither the " Articles of Confedera- tion " of 1777, nor the " Constitution of the United States," as originally proposed (1787j and ratified, contained any "Bill," or "Declaration of Rights"; it is true, also, that the first ten "Amendments," which were added in 1789, were regarded by Jefferson as a somewhat inadequate substitute for the Declara- tion of Rights which he desired.^ But it should not be for- ^ See Moncnre Conway, Life of Thomas I'aine, I. pp. 272-275. ^ See his letters to Madison quoted by Janet, Hist, dc la Science Politique (Ed. 3), 1., Introd., i)p. xxi.x.-xxxi. 4 THE PRINCIPLES OF '89 [ch. i gotten, /?r.«f, that the Declaration of Independence (1776) had already named the natural and "unalienable rights," in virtue of which the American colonists justified their rebellion ao-ainst the British Government and their existence as a group of leagued but independent States : and second^ that the Constitution of the United States— even that of 1787— was reo-arded as only drawing closer the bonds of alliance between States which were still supposed to retain, in many respects, their sovereign rights. The Constitution of the Union only contains the terms of the federal compact.^ It declares the rights of the States as against the Federal Government. The appropriate place for the declaration of the rights of the indi- vidual citizen is not in the federal constitution, but in the consti- tutions of the several States.- And in most of the Constitutions which originated after 1776 (some of the States retaining for a considerable period — Rhode Island as late as 1842 — their old colonial charters), there is a Declaration, or Bill of Eights, exactly analogous to the French declaration. The " Bill of Rights " of Virginia (June 12th, 1776) may be taken as typical : it has served as the model for many similar declara- tions, adopted after American independence had been secured. " Other colonies," says Bancroft, " had framed bills of rights in reference to their relations with Britain: Virginia moved from charters and customs to primal principles; from a narrow altercation about facts to the contemplation of immutable truth. She summoned the eternal laws of man's being to pro- test against all tyranny." ^ These words are worth pondering, and also the words of the " Bill of Rights " itself. They may serve as a wholesome warning against the habit of explaining political institutions and political ideas by facile theories of race-difference. As M. Paul Janet has well said, " If the French Revolution has lasted longer and been more violent than the English ' See below, pp. 241, 242. '•* Franklin had the American State Constitutions translated into French, and presented them to Louis XVI. Cf. Moncure Conwaj', Life of Paine, I. p. 290. » Ilistorrj of the United States (ed. 5), YIII. p. 383. In M. Paul Janet's " Introduction" to the 3rd edition of his Histoiie de la Science Politique, the contrast drawn by M. Boutmy between the French and American Constitutions in this matter of natural rights, seems to me verj- .fifectively criticised. CH. i] THE PRINCIPLES OF '89 5 Revolution, it is because it has taken place a century later." ^ The English parliamentarian was able to appeal, with more or less accuracy, to " historical rights " — not in a forgotten, . but in a recent past. The advocate of constitutional govern- ment in the France of 1789 could not appeal to any " historical rights " that were known to any one but antiquarians. Apart from the longer postponement of the crisis, the remed}' was more difficult to find in France than in England, secured against continental complications by her insular position, or than in America, separated by the ocean from the government she was shaking off, and either receiving the sympathy, or free from the interference of distant European powers. TJie principles of the French Revolution were phrased in " meta- physical" language. This was not due to a special defect in the French mind, but to the spirit of the eighteenth century. The English revolutionists of 1640 to 1660 spoke in theological language ; it was the fashion of their time. The inheritors of English traditions in America talk the same " metaphysical jargon " which the French were to repeat in the next decade. The Virginians declare — " That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posteritj^ ; namely, the enjoj'ment of life and libert3^, with the means of acquiring and pos- sessing property, and pursuing and obtaining happiness and safety. " That all power is vested in, and consequently derived from, the people ; that magistrates are their trustees and servants, and at all times amenable to them. " That government is, or ought to he, instituted for the common benefit, protection and security of the people, nation or community ; of all the various modes and forms of government, that is best which is cap- able of producing the greatest degree of happiness and safetj?-, and is.most effectually secured against the danger of maladministration ; and that when a government shall be found inadequate or contrary' to these pur- poses, a majority of the community hath an indubitable, unalienable and indefeasible right to reform, alter or abolish it, in such manner as shall he judged most conducive to the public weal." Is there anything more extreme in the French declarations of 1791 and 1793? And is there one word of Burke's eloquent denunciation of " metaphysic rights " which would not be equally applicable to this Virginian declaration of 1776 ? And the Americans should, in his eyes, have had the less excuse ^ Hht, de la fSc. Pol. (od. 3), p. Ixi. 6 THE nUNCIPLES OF 'S9 [ch. i for their metaphysics, because they might have continued to appeal, as they already liad appealed, to the inheritance of .English liberties. We must not suppose that this appeal to natural rights was due solely to the influence of Rousseau, or that save for French " metaphysics " such ideas would never have found a home in the minds of men of English race and English speech. "Men being by nature all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent." These are the words of the sober Englishman, John Locke ; ^ and in his Treatise of Civil Government^ the great intellectual vindication of the prin- ciples of the "Whig revolution of 1688,^ will be found every one of the three principles which Burke condemns, and which he doubtless did not find expressly formulated in the Act of the 1st of William and Mary, sess. 2, ch. 2, which is known as the "Declaration of Right." The principles of the revo-« lution of 1688, according to Dr. Richard Price, were these : — that we have a right (1) " To choose our own governors ; " {2j " To cashier them for misconduct ; " (3) " To frame a government for ourselves." ^ The doctrines of the American Declaration of Independence resemble far more closely the views of Locke than those of Rousseau. None at least of those theories in respect of which Rousseau differs from Locke are to Ije found in the American Declaration. And one passage in the American Declaration echoes not merely the ideas, but the very phraseology of Locke's Treatise.'^ But the theory of natural rights was not Locke's invention. Neither he nor Jean Jacques can claim the credit of having " discovered the lost title-deeds of the human race." The theory of natural rights is simply the logical outgrowth of the Protestant revolt against the authority of tradition, the logi- cal outgrowth of the Protestant appeal to private judgment, i.e. to the reason and conscience of the individual. Speaking * Treatise of Civil Government., II. § 95. - It was published in 1000, though the greater part of it maj- have been written before 1688. See Fox Bourne, Life of Locke, II. pp. 165, 166. ^ Discourse on the Love of our Country, delivered on Nov. Uh, 1789. Cf. Burke, Reflections on the lievolution in France, near the beginning. ■• Compare with the Declaration (see Appendix) Locke's Treatise of Civil Government, II. § 225, especially the words, "But if a long train of abuses," etc. CH. i] THE PRINCIPLES OF '89 7 generall}'-, we may say that throughout all the struggles of the Middle Ages, it was not " liberty" for which men fought, but " liberties," Privileges were claimed because of some real or fancied authority in the past. A town, a district, a corporation, or a social class alleged on its own behalf im- memorial custom or some definite royal, imperial, or papal grant or charter. The political theories of the Middle Ages were mostly the theories of men living in the cloister, or trained under monastic influences. They implied the accep- tance of three great authorities, which might be interpreted or applied, but were not to be questioned — the authority of the Bible, of Aristotle, and of Justinian. Now, as we shall see, each of these authorities contributed something (Aristotle least of all) to that idea of a Law of Nature which, in the eighteenth century, became the basis of the revolutionary creed. But, while the intellect of Europe still lived under the abiding shadow of the Holy Roman Empire and the Holy Roman Church, man did not think of himself except as the paember of a particular nation, and, still more even, as the mem- ber of a definite social class or caste. The Aristotelian doctrine that " man is by nature a political animal " had acquired the sanctity of a dogma, and kept the mediaeval thinker from imagining man's rights in abstraction from any particular political society. Still, even in the Middle Ages among the unlettered multitudes, with whom Aristotle and Justinian counted for nothing, but the dimly known Hebrew Scriptures for a great deal, we find the first germs of an appeal to some- thing beyond all charters and all customs and usages of which lawyers knew. WyclifFe's startling thesis that " every one in a state of grace has real lordship over the whole uni- verse," ^ from which he deduces his ideal of community of property, can hardly be cited as a mediaeval example of the natural rights theory, because it is not man as man, but only the saints that are in this fashion to inherit the earth. Th-e man who is in mortal sin cannot hold dominion or lord- ship at all. Nevertheless, it is easy to see what might become of such interpretations of the Bible when they made their way into the minds of the poor parish priests, or of oppressed * See WyclifFe, De Civili Dominio, edited by R. L. Poole. Pref., pp. xxii.-xxiv. 8 THE rRINCITLES OF '89 [ch. i peasants, who found in some scriptural phrase a voice for their sufferings and for their claims. " When Adam dalf and Eve span, Who was then the gentleman ? " In these words, which fixed in the popular mind the teach- ings of the "mad" Wycliffite, John Ball, we have a genuine appeal to the natural equality of mankind. The Bible, which "VVycliife had tried to open to his countrymen, admitted, in- deed, of diverse interpretations. Adam's dominion over the creatures was appealed to by Sir Robert Filmer ^ in the seven- teenth century as a ground for the divine right of kings to rule despotically ; but an English peasant of the fourteenth century, or of the seventeenth, was likely to find a different lesson in the story of the "grand old gardener and his wife." If all mankind were the sons of Adam, and if all might be- come by adoption the sons of God, distinctions of birth, and wealth, and power seemed a mere human invention, a conse- quence (but why an inevitable consequence ?) of sin and the corruption of human nature. Under the reign of the saints might we not get rid of these inequalities ? The doctrine of the " Levellers " may not be the doctrine of the most learned, nor of the most orthodox, theologians, but it represents the ideal which the exercise of private judgment in the study of the Bible had kindled in the minds of the disinherited and the oppressed. I have already referred incidentally to the historical or quasi-historical character of the rights claimed by the English parliamentarians in the seventeenth century. The more advanced sections of the anti-royalist party find themselves driven farther and farther back in their claims. " To recover our birthrights and privileges as Englishmen," " to purchase our inheritances which have been lost," are alleged by some of Cromwell's soldiers as the reason why they had taken up arms.^ They are not content with Lancastrian precedents : they profess to seek to undo the mischief of "Normanism." The times before the Norman Conquest are imagined as a golden age when Englishmen had their rights. According to ' In his Pafriarcha, published 1G80 (Filmer died 1653). It is against this book that Locke wrote his first Treatise of Civil Government. * See The Clarke Papers [debates in the Parliamentary army, 1647], edited by C. H. Firth, Vol. I. pp. 235, 322. CH. i] THE PRINCIPLES OE 'Z() 9 some of the "Levellers," the law and the constitution alike were part of the Norman yoke.^ " The greatest mischief of all, and the oppressing bondage of England ever since the Norman yoke," says Lilburn, " is a law called the common law. . . . The laws of this nation are unworthy a free people, and deserve from first to last to be considered and seriously debated, and reduced to an agreement with com- mon equity and right reason, which ought to be the form and life of every government. Magna Charta itself, being but a beggarly thing, containing many marks of intolerable bondage, and the laws that have been made since by Parlia- ments have in very many particulars made our government much more oppressive and intolerable."^ Thomas Edwards, the "shallow Edwards" of Milton's sonnet, a Presbyterian and constitutionalist, complains of the "sectaries" in his Gangrcena: — "As they do in matters of religion and conscience fly from the Scriptures, and from supernatural truths revealed there, that a man may not be questioned for going against them, but only for errors against the light of nature and right reason ; so they do also in civil government and things of this world, they go from the laws and constitution of kingdoms, and will be governed by rules according to nature and right reason ; and though the laws and customs of a kingdom be never so plain and clear against their ways, yet they will not submit, but cry out for natural rights derived from Adam and right reason," ^ Elsewhere the same writer e'xplains what these sectaries meant by natural rights. " All men [according to them] are by nature the sons of Adam, and from him have legitimately derived a natural propriety [i.e. property], right and freedom. . . . By natural birth all men are equally and alike born to like propriety, liberty, and freedom ; and as we are delivered of God by the hand of nature into this world, every one Avith a natural innate freedom and propriety, even so we are to live, ever}^ one equally and alike, to enjoy his birthright and privilege."* ^ The Clarke Papers, Pref., p. Ixi. ^ Quoted from Lilburn's Jusf. i} fan's Justification, pp. 11-15, bj- Mr. C. H. Firth, in his Pref. to the Clarke Papers, I. p. Ixi. 3 GaiKjrcena, pt. iii. p. 20, quoted likewise by Mr. Firth, p. Ix. (1 have modernised the spelling.) * lb., pt. iii. p. 16, quoted by Mr. Firth, p. Ixii. lo THE PRINCIPLES OF '89 [ch. i Thus already in the Puritan revolution of the seventeenth century the appeal to historic right was replaced by an appeal to natural rights. The struggle for parliamentary liberties led some men to go behind parliaments and charters, just as the independent study of the Bible led some men to go behind the authority of Bible and to rely on the authority of " the inner light " alone. This is the logical outcome of Protestantism, however unacceptable to the majority of those calling them- selves Protestants, however unsatisfactory and dangerous in the eyes of those who were more influenced by the historic spirit and who realised in more or less intelligent fashion the necessity of social cohesion and continuity. When compared with the " Levellers" — those Puritan precursors of Robespierre and St. Just — Cromwell and Ireton show their intellectual affinity with Burke, or even with Dr. Johnson. " We are very apt, all of us, to call that faith which perhaps may be but carnal imagination." ^ In these words Cromwell pours cold water on the fire of the mystical enthusiasts, who abounded in the parliamentary army. Cromwell objects to the " Agreement of the People " that it contained too great alterations in the government of the country,^ Ireton abhors arguments about abstract justice, and scents danger in the appeal to natural rights. " When I do hear men speak of laying aside all en- gagements to consider only that wild or vast notion of what in every man's conception is just or unjust, I am afraid and do tremble at the boundless and endless consequences of it. . . . If 3^ou do paramount to all constitutions hold up this law of nature, I would fain have any man shew me where you will end." » Puritan England had produced the theory of natural rights ; but the conditions were not yet favourable for its abundant growth. The American colonists a century later appealed at first to the customary and traditional rights of all British sub- jects. The Convention at New York, in October, 1765, while protesting loyalty to His Majesty King George, declared " That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them but with their own consent, given person- > Clarice Papers, I. p. 238. -' Ibid., p. 23G. 2 Ibid., i^^. Ixix., 2G4, 307. CH. I] THE PRINCIPLES OF '89 11 ally or by their representatives. . . . That trial by jury is the inherent and invaluable right of every British subject in these colonies," and so on, entirely in the spirit of the English Bill of Rights of 1G89. But in the Declaration of Rights of the Philadelphia Congress of 1774 appeal is made not only to " the principles of the English constitntion and the several charters or compacts," but to " the immu- table laws of nature " ; and first among the rights claimed comes the right '' to life, liberty, and property." ^ In the Declaration of Independence of July 4th, 1776, no more is said about the rights of British subjects. The thirteen united States of America base their claim to independence on " cer- tain unalienable rig^hts," which come to man direct from his Creator. The French Declarations of 1791 and 1793 are pro- claimed " in the presence of the Supreme Being," but the " imprescriptible rights " are said to come to man simply by nature or by birth. Thus the theory of natural rights appears full grown, detached from history, and freed from the Biblical or theological wrappings which at first in part concealed its metaphysical nakedness. The tendency is, however, always strong to translate logical or metaphysical theories into the easier language of imagined history. The ordinary mind thinks in pictures : and even those who are counted among philosophers fall a prey to the habit. Thus, while Hobbes does not seem to ascribe any his- torical character to the social contract, which is at the basis of all political society, and while Rousseau expressly disclaims the attempt to offer an historical explanation " of how govern- ments came into existence, Locke seeks to give historical proofs of the origin of political society by means of contract, referring to the cases of Rome and A^enice,'^ and speaks of the state of nature as a golden age in the past. ^ These declarations will be found in Documents Illustrative of Ameri- can History icith Introductions and References, edited by Howard W. Preston. 2nd edit. New York, 1891. '' Cf. Contrat Social, I. c. i. : " L'homme est ne libra, et partout il est dans les fers. . . Comment ce changement s'est-il fait ? Je I'ignore. Qu'est-ce qui pent la rendre legitime? Je cx-ois pouvoir resoudre cette question." It is thus no refutation of Rousseau to say tliat Joan Jacques has not fixed the date of the social contract. ^ Treatise of Civil Government, II. % 102. In anearlyessaj', "Reflections upon the Roman Commonwealth," written probably about IGGO, parts of 12 THE PRIXCIPLES OF '89 [ci-r. i Similarly we find that Thomas Paine, in the passionate rhetoric of his re23ly to Burke, defends the doctrine of the rights of man, not as one might expect, by turning away from the dust of parchments to the eternal laws of nature, but by appealing from antiquity to an antiquity still more venerable. " The error of those who reason by precedents drawn from antiquit}^, respecting the rights of man, is that they do not go far enough into antiquity. . . . Portions of antiquity, by proving everything, establish nothing. It is authority against authority all the way, till we come to the divine origin of the rights of man at the creation. Here our enquiries find a resting place and our reason finds a home." ^ As a rhetorical argument, this of course is quite justifiable.^ When charters, precedents, and title-deeds are quoted to stop the mouth of the reformer, it is quite legitimate in the court of public opinion, though not in the law-courts, to appeal to the title-deeds of the human race ; and against opponents who have tried to silence one by the authority of Scripture to appeal to our common descent from Adam. At all times it has been customary'' to represent reform as the return to some earlier and better condition of affairs. The very word " reform " suggests this. The " Levellers," and the champions of the natural rights of man, might very well think of them- selves as only extending farther the principle of appealing to the past, which more moderate or more timid reformers, ecclesiastical and political, expressly adopted. It was espe- cially easy to do this in an age when, even among professed historians, the sense of historical perspective was very weak, when the theory of evolution had not yet been proclaimed from the house-tops, when people were still influenced in their practical thinking by the classical dream of a golden which are printed in Mr. Fox Bourne's Life, I. pp. 148 seq., Locke speaks of the " colony" which founded Rome as being "in the original state of nature, free, and independent of any dominion whatsoever," and at liberty to choose their own form of government. ^ RhjhtH of Man, p. 18. (Freethought Publishing Company's edition. London, 1883.) ^ It sliould be noted, moreover, that Paine expressly avoids the appear- ance of appealing merely to the origin of mankind. " Every child," he saj-s, " born into the world must be considei-ed as deriving its existence from God. The world is as new to him as it was to the first man that existed, and his natural right in it is of the same kind." Generation is regarded as the mode by which creation is continually repeated. CH. i] THE PRINCIPLES OF '89 13 age, and by the Hebrew legend of Paradise ; and when it was possible, before the birth of anthropological science, and at a safe distance from savage races, to idealise the noble inhabitant of the woods. Even now, as I shall have occasion to point out later on — even now, with the phraseology of evolution in everybody's mouth, it is remarkable how per- sistent is the belief in those ever-receding " good old days " ; and stray attempts are sometimes made, where we should least expect them, to rehabilitate the Golden Age. The real significance of the theory of natural rights is, how- ever, entirely independent of any historical, or quasi-historical, setting that may be given to it. The real significance of the theory is not to be determined by reference to remote ages, or to rude peoples ; as with all political theories, and as with all philosophical theories which are a genuine expression of the thought and feeling of the period in which they prevail, its meaning is only understood aright if we consider it in relation to the circumstances of the very time in which it was main- tained. The real significance of the appeal to nature is, in the first place, the negative element in the appeal ; it is an appeal against authorities that had lost their sacredness, against insti- tutions that had outlived their usefulness ; against artificiality in art, in literature, in manners, in dress — against wigs and hair-powder. Secondly, as we have already seen, the theory of natural rights is Protestantism transferred to the region of worldly affairs, and stripped of the traditionalism against which at first it did not " protest " — the paramount authority of a book, accepted on the guarantee of the "Church" whose authority was rejected, and interpreted on certain traditional assump- tions. Mediaeval doctors accepted the authority of the Church, of the Bible, and of the Law of Nature interpreted by reason, but under a general guidance from the other two authorities. The earlier Protestants, protesting against the corruptions in the Church, were not careful to lay down the precise relation- ship between the other two authorities. When Protestantism had in its turn crystallised into a traditional system, the intel- lectual descendants of the first Protestants appeared as the Deists and Rationalists of the eighteenth century. Calvin's G-eneva in due time brought forth Rousseau ; and English Puritanism on American soil produced the Declaration of 14 THE PRINCIPLES OF '89 [ch. i Independence.^ All other authorities are thrown aside or are ranked as subordinate. Nature interpreted by Reason, and by Reason not embodied in any society, but existing in the individual mind, becomes the ultimate court of appeal. That is to say, the assertion of natural rights implies not merely a protest against the authority of customs and institutions, but an appeal from this authority to the judgment of every indi- vidual simply as such. The individualism of the theory may indeed not seem as conspicuous as its negative character, be- cause in appealing to Reason people have generally assumed that Reason will give the same judgments in different minds. The appeal to common sense (alike in the colloquial and in the more philosophical use of that term) involves an assump- tion of an objective or universal aspect of human reason, an assumption which has restrained the theory of natural rights within what have seemed "reasonable" limits, but only at the cost of inconsistency with the assumed antagonism be- tween reason and convention. But to this logical defect in the theory I shall have to return later on. The ambiguities in its application can be shown at once by an illustration. " Negativity " and "individualism" both un^ly ahstractness^ i.e. want of close relationship or organic connection with the concrete facts of social life and history. And all abstract theories about human society admit of divergent and conflict- ing application. Thus the theory of social contract is used by Hobbes to condemn rebellion, and by Locke to justify it. The conception of social organism is used by Plato to justify the extremest interference with individual liberty, and b}' Mr. Herbert Spencer to condemn a very moderate amount of State control. And so the theory of natural rights is used b}^ Anar- chists to condemn the existing inequalities of social conditions, and by Conservatives to check attempts on the part of govern- " Jolm "Wyse published in 1717, "A Vindication of the Government of New Enixland Churchog, Drawn from Antiquity, the Light of Nature, Holy Scripture, its Noble Nature, and from the Dignity Divine Provi- dence has put upon it," 1717. It was twice reprinted in 1772. Some sen- tences quoted from this book by Mr. Charles Borgeaud in his Etdblissement et lievision des Constitutions en Ameriqne et en Europe, p. 17, express the social contract theory in the form in which it is held bj' Locke and by Rousseau. (There is no copy of the book in the Bodleian Library.) Wyse may be regarded as helping the transition from the seventeenth- century Puritan to the eighteenth-century revolutionist. CH. i] THE PRINCIPLES OF '^ 15 ments to remedy these inequalities. The first of these modes of application may seem indeed the more logical outcome of a theory whose essence lies in protest and negation ; but the second is, at the present daj^, quite as common. Protestant- isms crystallise into dogmatisms ; and the theory of the revolu- tionist becomes the watchword of the Conservative and of the reactionary. The English revolution of 1688 and the Ameri- can revolution of 1776 were carried out in defence of the rights of "liberty and property."^ The "Liberty and Pro- perty Defence League " of our own days regards itself as a bulwark against revolutionary legislation. Mr. Herbert Spencer, in sad isolation, defends " natural rights " against the logical consequences of the evolutionist philosophy with which he has familiarised his contemporaries.^ It is difficult to know whether Mr. Auberon Herbert is to be classed among the Anarchists or among the reactionaries. Perhaps his case proves that there is more affinity between these apparent extremes than appears at first sight. People are in the habit of building the sepulchres of the prophets their fathers stoned, and although, so far as I know, Tom Paine has not yet been made a saint by the Knights and Dames of the Primrose League, the spirit of the " rebellious stay-maker," if it ever frequents the meetings of that highly respectable organisa- tion, may have felt a grim delight in hearing the " Rights of man " preached by a Tory Lord Chancellor. At a Primrose League meeting in the town of Dingwall, August, 1891 (I quote from a newspaper report ),^ Lord Halsbury, in opposition to the subversive proposals of Radicals, declared that " one of the things which the British people most cherished was their own freedom of action, the right to do as they willed with their own, whether it was their labour, their property, or their skill." These are just the rights which figure in the Ameri- can and the French Declarations. Paine or Robespierre would ' Janet, in his Hist, de la Science Politique (ed. 3), 11. p. 202, quotes Voltaire as saying : '■^Liberty and pi'opriety voila la devise des Anglais ; elle vaut bien: Mont.joye et Saint Denis." In saying "propriety," it should perhaps be noted, Voltaire has not the British matron in his minds eye. ■•* See The Man versus the State, pp. 87, seq. The conception of society as essentially organic or super-organic, if it bo once really accepted, is incompatible with the individualism of the " natural rights " theory\ 3 Bradford Observer, Aug. I'Jth, 1891. 1 6 THE PRINCIPLES OF '89 [ch. 1 doubtless have asked for some definition of the right of property ; but as to the right of labour it was only the droit du tracail and not yet the droit an traoail (" the right to do work" — not " the right to get work ") which formed one of the principles of 1789. The change which has taken place in English political thought with regard to the American constitution is another illustration of the way in which the Conservatives of one generation may take up the ideas of a past generation of Radicals. The supremacy of parliament and its competency to reform itself were attacked by Paine as aristocratic and despotic elements in the British Constitution. Now the demand for a rigid Constitution on the American plan, ex- empting certain rights from the control of the legislature, comes not from the Radical but from the Conservative side. " Americanise our institutions," is a cry which has passed from the mouth of Paine to the mouth of Maine.^ It argues an imperfect knowledge of the history of human thought if we are astonished at this apparent shifting of sides in the controversy. The very fact that some formula served to express the special needs of a particular age might lead us to expect that it would not adequately express the special needs of a later age, in which the course of events had brought new problems to the surface. And thus the very watchwords of the reformer of one generation may be re- peated most fervently by the opponents of reform in another. This need not make us sceptical about the possibility of man- kind knowing anything that is true, or holding any belief tliat is worth holding ; the very reverse, if we read the facts rightly. If we would avoid such scepticism about humanity as would paralyse all serious effort, and make us hesitate to call anything right or wrong, we must admit the fundamental rationality of all institutions or practical beliefs that have been able to hold their ground for some considerable time, and to afford shelter and supply cohesion to considerable numbers of human beings. They must in some way have been advan- tageous to the society in which they prevailed, else — on the principle of natural selection — they could not have prevailed ; they would have been crushed out along with a society which fed on poisonous stuff. The evolution theory compels ' See liis Popular Government, Essay IV. (orig. publ. in Quarterly lievlett). CH. i] THE PRINCirLES OF '89 17 those who accept it to regard social cohesion and durability as the proof of some degree at least of ethical value and truth. It is a shallow wisdom which can see nothing but falsehood and nothing but evil in widely diffused creeds and long en- during institutions ; and the dogmatic despiser of the past does not observe that, while he is challenging the bitter antagonism of those who, by blind sentiment or reasonable conviction, cling to whatever they find of seeming stability around them, he is losing the argumentative advantage which comes from an appeal to the spirit of the initiators of bygone days against the mere repetition of the letter of their teaching by those who profess to be their followers. Paine makes a most effective point against Burke, when he shows the inconsistency of accepting the results of the revolution of 1688 as necessarily and for ever prohibiting any further change in the constitution. The example of the. men of 1688 is more significant than their illogical and impossible attempt to bind all future generations. Let us admit that in practical affairs, in the complex material of human society, we never get complete truth or perfect institutions. Progress is only from one partial and one-sided expression of the whole truth which hovers before us as an ideal to another expression of it which may be equally, and sometimes even more, partial and one-sided, and which at the best is only less inadequate than that which it replaces. In this long controversy, this dialectic of the human spirit, the earlier and cruder stages are certainly more apt to take thp form of mere antagonism and mutual negation ; in the higher stages only does the new conception appear as simply the fuller development of that which it replaces. In political contro- versy, however, this " higher stage " is, as yet, more an ideal possibility than a fact. But, while admitting that durable institutions and widely diffused practical beliefs must have had in them some element of truth and value for the very reason that they flourished, we are the more justified in considering wliether they still retain a greater element of truth and value for our age than others which have risen to compete with them. Institutions and beliefs are apt to outlive their utility, and to prove in the long run destructive to the well-being, if not to the very existence, of the society which clings to them amid changed surroundings. The reformer who proposes a change is not contradicting the N.R. c 1 8 THE PRINCIPLES OF '89 [ch. i teachings of evolutionary science : he is obeying them, by seeking to save his society from suffering unnecessarily through the operation of natural selection. Looking back calml}' at the histor}' of Europe from mediseval times clown to the French Revolution, we can see certain obvious merits in the structure of mediaeval society which it was impossible for the representative spirits of the Reformation period or of eighteenth-century Rationalism to appreciate aright. We can see that the principle of Authority, the principle that the life and thought of the individual man are dependent on something greater and wider and more enduring than himself, — we can see that this principle was true, although mediaeval institutions realised it only in an external fashion, in the Church as a visible, outward organisation, and in the fixed castes of civil society. The revolt of the individual against this external organisation was inevitable and necessary, if mankind was to advance to new conquests over nature and over itself; andj-et this revolt, when carried out logically, took the form of making one man's private judgment (however foolish and however prejudiced, i.e. however little it might in reality be either "judgment" or " private ") count for as much as another's, and of substituting the mere temporary " cash- nexus " between individual and individual for the older bond of permanent mutual obligation. And so this principle of individualism tends in its turn, because only a partial truth (true as against what the old society had come to be), to prove itself false and mischievous. Those, therefore, who repeat the formulas of the individualist negation and revolt, where and so far as the circumstances which gave them a meaning have passed away, are repeating what once was truth, but has now become false, because meaningless. An illustration from a different but kindred case may make my argument clearer. People have sometimes wondered how the Calvinistic doctrine of Election, which, looked at logically, seemH much the same as Fatalism,^ could have been held bj' men of the most vigorous character, and should have been the ' The notion of Predestination only seems identical with Fatalism, because people are apt to think " abstractly," i.e. to take some one part of the whole process and isolate it from the series to which it belongs. The eternal decrees of God ai-e pictured as if they were arbitrary intru- sions into a process of cause and effect, which, apart from such intrusions, goes on of itself. CH. I] THE PRINCIPLES OF 'Z<) 19 religious stimulus and education of the very nations which struggled most stubbornly and most successfully for civil liberty. Consider to what the doctrine was opposed, and the mystery is explained ; the salvation of the individual depends solely on the eternal and unalterable decree of God — that is to say, it depends not at all on the will or act of any ecclesias- tical authority, of any human authority whatever. The doctrine of Election robs the priest of his power ; it is the appeal from man to Grod. And thus, in its negative aspect, it was a liberating creed, training up stern, independent men who feared God and feared none beside. The creed becomes something very different when it stiffens into a traditional dogma, isolated from any relation to the opinions to which it was opposed, and pictured with all the crude materialism of popular thought. It tends to become a dreary, other-worldly individualism. Having helped men to shake off tyrants, it turns a too abstract conception of God into a frightful picture of a tyrant worse than any of them. It is the same with this theory of natural rights. At first it represents the revolt against external authority, against the traditional mainten- ance of the status quo. When in its turn it is handed down as a traditional dogma out of relation to the particular circum- stances which gave it its value, it comes to be used as a support of what is now the established economic and social order, save where some of its phraseology passes into the mouths of fanatical Anarchists, who carry out the principles of individualism to their logical conclusion — the destruction of all orderly society whatever. It is my purpose in the following chapters to examine the conception of natural rights, the history of which has been here briefly sketched. I shall first take the idea of '■'■Nature,'''' considering it from the point of view both of history and of philosophical analj^sis. I shall then consider the conception of ^'■rights'''' generally, and shall afterwards take the most con- spicuous of the alleged "natural rights" in detail. I trust that I shall be found, consistently with what has just been said, while exposing ambiguities and criticising what seem to me false applications of the conception, to do full justice to its relative truth and its historic value. CHAPTER II ox THE HISTORY OF THE IDEA OF '' NATURE " IN LAW AND POLITICS ^ The words " nature " and " natural " are constantly bandied about in controversy as if they settled quarrels, whereas they only provoke them by their ambiguity. Slavery has been condemned as an " unnatural " institution ; and has been defended on the ground of the "natural " inferiority of some races to others. The equality of the sexes is asserted and denied on the ground of " nature." The " natural " goodness and the "natural" badness of mankind have been maintained with like earnestness and sincerity. " To live according to Nature " was the Stoic formula for the good life ; those Chris- tian theologians, who have in some ways most intellectual and moral affinity with the Stoics, have been those who have spoken most strongly about the corruption of " the natural man." "Natural religion" means something very different from " Nature-worship." " A natural child " means a child born out of wedlock ; but " an unnatural child " is not necessarily legitimate, " A state of nature " may mean the absence of clothing; but such absence is not considered essential to the possession of " a natural manner " in society. To the sentiment that " Nature is a holy thing " may always be opposed the proposition that " Nature is a rum 'un," and, in view of the ambiguity of the term, the theory of Mr. Squeers is perhaps the more easily defensible of the two. In no case can we understand what is meant by " Nature " or " natural " unless we know to what the speaker is opposing the term. As has already been pointed out. the special characteristic of the appeal to Nature is negation, antagonism ; it is an appeal from what exists or from what is proposed, » It is a pity that the English language does not allow one any short equivalent for the convenient German phrase " Zur Geschichte, etc." *' Contributions to," is cumbrous. 20 CH. ii] IN LAW AND POLITICS 21 and has therefore at all times been a convenient form of criticism, rather than a good basis for construction. We have seen that, though not originating in the eighteenth century, it is specially characteristic of that period — a period of criticism and individualism, a period of awakening and enlightenment. If we go back to an older period, which in many ways presents similar characteristics, we shall find this use of " nature " as the antithesis to convention and definite institutions anticipated in the ancient world. The age of the Sophists is the ancient equivalent of the age of the Ency- clopaedists ; in the phraseology of German historians of philo- sophy, it is the Greek " Illumination " {Aufklcinmg). Both periods represent a rationalistic revolt against traditional beliefs ; both prepare the way for a profounder philosophical study, especially of social institutions, than would have been possible without the intellectual revolution produced by the exercise of critical and sceptical reflection. In speaking of the Sophists, we must of course clear our minds completely of the misleading associations which have accumulated round that word. "We must remember that our ideas of them are derived mostly from the caricatures of Aristophanes and from the adverse criticisms of Plato. What fair-minded historian, with a sense of humour, would be content to take history from the cartoons of a partisan comic paper, or to accept as true what- ever an orthodox writer has said about the opinions of a heretic ? Besides, even Aristophanes and Plato may be sum- moned as witnesses against German or English writers who have libelled the Sophists as the corrupters of Hellas. Aristo- phanes hated the Sophists as an old Tory (or an old Whig — for that matter) hated the French Revolution and Tom Paine : but Aristophanes selects Socrates as the typical example of the class. Plato is respectful to Protagoras and Gorgias ; and Plato has expressly answered the charge of corruption, " It is not the individual Sophists, but that great Sophist, the public, that has a bad effect on our young men." ^ Grote has conclusively proved — strange, that proof should have been needed — that " Sophist " is not the name of a sect, but the name of a profession, a profession called into existence by the demand for " higher education."' There was a mental exhilaration produced in the Hellenic world, and especiallj' in ' Plato, Bepublic, VI. 492. 2 2 JII STORY OF THE IDEA OF NATURE [ch. ir Athens, by the defeat of the Persian invasions ' — the most striking, and in its consequences the most significant of the many examples in history of the intellectual stimulus which follows the shock of a successful war of liberation. This mental exhilaration and the growth of democracy, itself in part due to the same cause, created a demand among the ambitious youth for something more than the old education of reading, writing, music, and reciting passages from the great poets, who took the place of a " Bible " to the Greeks — an education like that given in Mohammedan countries at the present day, or, in its essential elements and defects, like that which till lately was among ourselves the usual education of young women of the middle and upper classes — an education which gave no scope whatever to the reasoning and critical faculties, but which produced, and was defended as producing, a contented acquiescence in traditional beliefs. The young Athenian of the new generation that grew up after Salamis wished for something more ; and the class of Sophists — pro- fessed " wise men ^' — arose to supply the demand. They were, in fact, an itinerant University — University Extension lec- turers, before the days of settled and endowed institutions for the promotion of learning and the higher education. They came from various parts of the Hellenic world, they had them- selves been trained in various schools of the older philosophers, who had speculated about nature, but had, on the whole, left ethics and politics alone. They taught with a directly practical object, to fit men for a successful career in public life ; they taught their pupils }iow to speak, and were the first of a long line of teachers of rhetoric (" the art of persuasion") ; they taught, or professed to teach, also what to speak about — the subject-matter of ethics and politics, "What is justice? What are laws ? What is the State ? The man who speaks in the law-courts or political assemblies speaks as if he knew what these terms meant. The Sophists made him think whether the terms as ordinarily used had any definite mean- ing at all. • Cf. Arist. PoZ. YIII. 6, § 11 : "When their wealth gave them greater leisure, and they had loftier notions of excellence, being also elated (rave's Dictionary of Political Economy. Those who are not interested in Aristotelian questions may be recommended to omit the next 4 pages. The habitual appeal to Aristotle as sanctioning the idea of a Law of Nature is my reason for entering on the discussion here. ' See above, p. 2ti, note 1. - Eth. Nic, V. 7, §§ 1, 2. •' Ibid, § 8. ^ In Eth. Nic, V. 9, § 12, t6 npioTou BUaiov is equivalent to to (fiva-iKov bUaiov. So in Pol., IV. 8, § *J, 17 dXrjdivrj Kal Tvpi and Politics^ he seems to hold that in practical matters we can be more certain of particular judgments as to right and wrong than of general principles. General principles we must have for the sake of legislation ; but they can only be valid " for the most part," and may need correction on the grounds of equity by an adminis- trator, who from his experience has acquired an " eye " {Eth. Nic, VI. 11, § 6) that will enable him to see rightly in par- ticulars. He does not speak of equity — " the correction of legal right " (ihid., V. 10, § 3), as the introduction of the law of nature to correct human law, but as a correction in some particular instance " of such a kind as the legislator himself would make, were he present " {ibid., § 5). If further proof were needed of Aristotle's attitude to the idea of the law of nature, I might refer to an example which he gives in the Topics (VI. 2, 140, a. 6) of a bad definition : '' Law is the measure or image of natural rights " (6 vofioq ixerpov^ rj etKonv rwv ^vaei Sikcucov). "Such phrases," he says, " are worse than metaphors : an image arises through imita- tion, and this is not the case with law." Now to call law an image is, so far as I can see, very like the notion of positive human law being a copy or reflection of the Law of Nature. But we must leave Aristotle for less exact thinkers, on whose minds these rhetorical phrases took a stronger and firmer hold, and whom modern defenders of Natural Rights can quote as authorities with better justification than that with which they can appeal to " the philosopher." A set of men, more grimly in earnest with life than the majority at least of the fashionable Sophists, took this anti- thesis of nature and convention, not merely as a weapon for attacking existing institutions with clever dialectic, but as a guide in conduct. One of the Socratic circle was Antisthenes, who is said to have previously been a pupil of the Sophist Gorgias. Antisthenes taught " that the wise man is self- ' What is meant by this is left obscure — Aristotle does not discuss this alternative — probably that law determines what is otherwise vague, just as in Aristotle's own theory of exchange {Eth. JV^iC, V. 5) money " mea- sures" values. CH. ii] IN LA W AND POLITICS n sufficient ; and that virtue does not need learning nor argu- ments, but deeds only. Tlie wise man will live not according to the established laws, but according to the law of virtue." The pupil of Antisthenes, Diogenes, is better known than his master, because of the gossip about him which has come down to ITS through that editor of philosophical " Tit Bits," his namesake, Diogenes Laertius.^ Diogenes became the typical cynic. He represents a revolt against convention, not in words only, but in life. He disowns the state ; he is a " citizen of the world." He scoffs at Plato's philosophy ; he appeals from fine arguments to the coarser evidence of his senses. " I see a table and a cup ; but I see no tableness or cupness." He scoffs at Plato's elegant carpet, trampling on it, as on Plato's pride, " with pride of his own," as Plato retorted. He lives in a tub instead of in a house. He sees a child drinking out of his hands, and thereupon throws away his drinking cup, saying, " The child has beaten me in the simplification of life." In all things he will follow nature rather than convention. He pre- fers liberty before everything. There is to be no property. He argues (in a way that anticipates Wycliffe, mutatis mutan- dis) that as everything belongs to the gods, and the gods are the friends of the wise, therefore everything belongs to the wise. There should be no marriage ; women and children should be in common. There is no impiety even in tasting human flesh. It is said that once he attempted to eat raw meat, but could not digest it. Of the Cynics generally we are told that they wished to abolish the whole system of logic and natural philosophy, and to give up literature, science, and art. They taught that men should live very simply, using only just as much food as is sufficient, and wearing only one garment, despising riches and glory and nobleness of birth. Some of them fed on nothing but herbs and drank only cold water, living in any chance shelter they could find. Diogenes used to say that the gods are in want of nothing, and that therefore, when a man wished for nothing, he was likest to the gods.-^ Here we have the " return to nature," the protest against convention, in its most extreme form. It is a protest which finds many echoes at various periods, and even in our own day. It ' "A learned man, in tlie worst sense of the term," as the late Pro- fessor Jowett once described him. ^ See Dio^^enes Laertins, Lib. VI., esp. §§ 103-105. N. R. D 34 HISTORY OF THE IDEA OF NATURE [ch. ii is the Hellenic anticipation of Rousseauism. In the history of thought it is most significant as the starting-point of Stoicism, In Stoicism the Cynic maxims are toned down so as to make them compatible with a fulfilment of the ordinary duties of an honest citizen's life. The self-sufiftcingness of the Cynic is still professedly held up as an ideal ; but his savage individualism gives waj^ before a more social creed, and " Nature " means something more than a mere absence of all that separates man from tlie beasts. It seems that in the Stoic maxim "to live in harmony with Nature," the words "with Nature " are an addition to the original formula, which meant therefore " to live in a way that is self-consistent," ^ Absence of contra- diction in the maxim of conduct rem.inds one at once of Kant, whose affinity with the Stoics has been frequentl}' noted. Thus reason is the ultimate judge of right conduct ; but reason to the Stoic is not the mere arbitrary whim of the individual. It is something whose decisions admit of argument and discussion. The Stoics, far from despising logic, cultivated it more than any other post- Aristotelian sect. But all theoretical philosophy was in their view subordinate to the practical guidance of life. " Nature " to the Stoics is not the mere chaos of sensible things minus whatever results from man's rational efforts. It is objective reason ; it is, as with Aristotle, the divine element in the Universe, The reason of the individual man is only a partial manifestation of it : his reason is a divine element in him, and it. is in virtue of this divine element in him that man can understand the reason that is in the Universe and can live the life according to Nature. Thus reason is not something that separates the judgment of one man from that of another. The appeal to reason is an appeal to the common reason of mankind. Human laws and institutions, therefore, are no longer despised as merely conventional. They are a realisation, however imperfect, of the law of Nature which is behind and above them. Even the popular religion is not to be despised as merely false ; it is an imperfect recognition of the deity that pervades the Universe, And the Stoic philosopher may with a good conscience take part in the national worship. Thus Stoicism touches the practical spirit of the legally-minded and conservative Roman on one side, whilst it passes over into Eastern or Neo-Platonic mysticism on the other. Stoicism, ' Stobseus, EcL, II. c. 6, § 6 (182). CH. ii] IN LAW AND POLITICS 35 developed among the Greeks when the decaying Greek city- state could no longer provide a basis for the moral life of the individual, developed possibly under Semitic influence, found its truest disciples among the Romans.^ To some of the noblest souls of the ancient world it became a religion. And it was a religion before which outward distinctions counted for nothing ; it was equally the creed of the lame slave Epictetus and of the Emperor Marcus Aurelius. Cynicism had merely offered a protest against a civilisation in which luxury was beginning to sap the vigour of the race. Stoicism was likewise a creed of political despair ; it had no belief in social progress. Nevertheless, by placing its practical ideal, not in the isolation of the individual human being, but in his union with the great whole of nature and humanity — an abstract universal, instead of an abstract particular — it favoured the very social progress which it seemed to deny. It was the fitting creed of the best citizens of a universal empire; it gave an intellectual justification for the breaking down of the barriers of race and caste. Earlier than Christianity it proclaimed that all men were brothers, and that all might be by adoption the sons of God. In its contempt for " things external " as things indifferent, like Christianity, it escaped the need of directly facing many social problems ; but it intro- duced a cosmopolitan and humanising spirit into the minds of practical citizens, who were engaged in the work of adminis- tering and interpreting the law of the Roman world. Cicero is not now considered a great name in the history of philosophy ; but he is a very important person in the history of human thought in general. He had no genuine speculative interest in philosophical problems ; he is mildly sceptical of all solutions, but kindly disposed to all Schools. Yet in ethics he can be dogmatic enough, and has most affinity with the Stoics, tempering the harshness of their doctrines with elements borrowed from Plato and Aristotle and with the sane, practical judgment of the Roman spirit softened by Greek culture. For the very reasons which make his writings unsatisfactory to the special student of philosophy, they were admirably fitted to ^ It must not indeed be forgotten that the practical character of later Stoicism and its fitness to influence legal reformers was greatly due to the fact of its being adopted by practical and politically-minded Eomans. Cf. Zeller, Eclecticism (tr.), pp. 14-16. 36 HISTORY OF THE IDEA OF NATURE [ch. ii influence the average educated man. And it is tlirougli Cicero's graceful Latin, more than through any other single channel, that so large a portion of Greek, and above all of Stoic ethics, has become the common heritage of the civilised world. The customary appeal, away from the disputes of the philo- sophers, to the feelings implanted by God and Nature in the heart of every man, to the common sense or the universal opinion of mankind — this commonplace of popular philosophy is the very essence of Cicero's ethical teaching. And here we find the first distinct formulation of the idea of the law of nature, in that very form of it which survives in modern thought. " In every matter the consent of all peoples is to be considered as the law of nature." " Universal consent is the voice of nature." ^ Not only the fundamental principles of morality, but the existence of God and the immortality of the soul are revealed to us by " that voice of nature " which speaks through the general consent of mankind. This innate con- sciousness of what is right and true may indeed be obscured and depraved by evil habits, but it is there nevertheless, and it appears clearly in the opinions of the best men, and in the uncorrupted minds of the young, " in whom as in a mirror nature is seen." ^ Is not this just the "Common Sense" or " Intuitionist " philosophy to which so many moderns have resorted as the safest, and undoubtedly the easiest, defence against Scepticism ? It is in this Ciceronian and popular form that Stoic philo- sophy found its way into Roman law. I do not mean to suggest that the later jurists were conscious of borrowing the idea of the law of nature directly from Cicero, or from any Greek or Roman Stoic philosopher ; but that Cicero's use and interpretation of the idea of nature sufficiently explains the introduction of that idea as an equivalent or as a basis for the J26s (jentium. The phrase j«.§ gentium was, in the seventeenth century, by a mistranslation taken to mean " the law of nations," what we now call " international law." The mis- ' -'Omni autem in re consensio omnium gentium lex naturae putanda est" (Ti/i'C, I. 13, § 30). "Omnium consensus naturae vox est" {Ibid., 15, § 35). "^ De Fin., II. 14, § 45 ; V. 22, § 61. " Indicant pueri, in quibus ut in speculis natura cernitur." CH. ii] IN LAW AND POLITICS 37 translation was a fortunate one, because it allowed Grotius, and others, to introduce the humane conceptions of the Roman " law of nature " into the theory of the right relations between independent political societies. Nevertheless, it was a mis- translation. JuH gentium was the term used to describe those principles on which Roman magistrates decided cases in which the parties were not both Roman citizens, and in which, therefore, the jus civile was regarded as inapplicable. Jus gentium meant simply " the principles generally accepted among mankind," the common law of the world. ^ In practice this meant the generally recognised principles of right among those peoples with whom the Romans came most in contact, primarily, of course, the other Italian races who were more or less akin to the Romans in blood, in language, and in social usages. This jus gentium, however, could never be anything so fixed and definite as the jus civile of any particular State. Hence it left much more scope for the exercise of his own judgment of what was right or wrong on the part of the pr(Etor, tempered by that respect for precedent in which the Romans resemble the English — a respect for precedent which has contributed so largely to the stability and quiet growth of legal and social institutions among both peoples. It is obvious how easily this idea of jus gentium or " equity " would coalesce with that of the law of nature, when the latter con- ception found its way from Greek philosophy into the minds of Roman jurists. The law of nature was regarded as some- thing permanently existing behind the particular law of this or that State ; and it came to serve as an ideal of excellence towards which the civil law should, when possible, be made to approximate. It served as a standard of simplicity and of perfection, and, as Sir Henry Maine has suggested, is probably the chief reason for the progressive character of Roman legal conceptions.- ^ See art. on Jus Gentium, by the late Prof. Henry Nettleship in Journal of PliUology. Vol. XIII. p. IG!) seq. * Ancient Law, p. 78. Muirhead {Roman Law, p. 301) quotes a remark of Voigt's " that the risk which arose from the setting up of the precepts of a speculative jM*' nafiirale, as derogating from the rules of the jus civile, was greatly diminished through tlie position held by tlie jurists of the early empire. Theiv jus responchndi made them legislative organs of the State; so that in introducing principles of the jus naturale or of cequum et bonum, they at the same moment positivised them, and gave 38 HISTORY OF THE IDEA OF NATURE [ch. ii One great jurist, Ulpian, drew a peculiar distinction between tlie jw.§ »rti?y legislation. This is obviously very much less than is meant by " rights " under the law of nature in its old sense. It is simply an appeal to fact ; and I do not see that it settles for us which instincts deserve our respect and which do not, and that is just the important matter in practice. To this subject I must return. CHAPTER III ROUSSEAU AND EOUSSEAUISJI " This transition from the state of nature to the civil state produces a very remarkable change in man, by substituting in liis conduct justice for instinct and giving to his actions the morality which they previously lacked. It is then alone that, the voice of duty taking the place of physical impulse, and right taking the place of appetite, man, who hitherto has considered no one but himself, sees himself forced to act on different principles and to consult his reason before listening to his inclinations. Although he deprives himself in the civil state of several advantages which nature gives him, he gains such great advantages in their stead, his capacities are exercised and developed, his ideas are enlarged, his sentiments are ennobled, his whole soul is elevated to such a degree that if the abuses of this new condition did not degrade him often below the level of that from which he has come, he ought to bless without ceasing the happy instant which took him from it for ever, and which of an animal stupid and limited made him an intelligent being and a man." This passage from Rousseau's Contrat Social (I. c. 8) might almost serve as a commentary on Aristotle's doctrine that " man is by nature a political animal," save that Rousseau uses the term " nature " only in a negative sense, for the non-civil state. The qualification which is added to the praise of the civil state also finds its counterpart in Aristotle : — " A social instinct is implanted in all men by nature, and yet he who first founded the state was the greatest of benefac- tors. For man when perfected is the best of animals, but when separated from law and justice he is the worst of all ; since armed injustice is the more dangerous, and he is equipped at birth with the arms of intelligence and with moral qualities which he may use for the worst ends.^ Wherefore, if he have ' Mr. Welldon translates, " Nature has endowed man with arms which •»8 CH. Ill] ROUSSEAU AND ROUSSEAUISAf 49 not virtue, lie is the most unholy and the most savage of animals, and the most full of lust and o-lnttony.'" ^ The civilised man can sink himself lower, but he can also rise higher than the beast or the savage. The savage is in- capable of some civilised vices, but he is also incapable of most civilised virtues. The passage I have quoted from Rousseau does not contaiu what is usually supposed to be Rousseau's view of civilised society. The evils incident to the civil state are admitted, but that only in the civil state can man rise above the animal is recognised by Rousseau as fully as by Aristotle. No great writer perhaps has suffered more than Rousseau from having his views judged by his weakest writings. The Confrat Social is a book much more talked about than read, and the prevalent opinion about Rousseau's social theories is derived from the paradoxes of his early prize essays, the Discourse on the Sciences and Arts (1750), which gained a prize, and the Discourse on the Origin of Inequality among Men (1753, publ. 1764), which did not. It is there he maintains that " our souls have been corrupted in the proportion in which our sciences and arts have advanced to perfection"; that "the man who thinks is an animal spoilt " ; that '' iron and corn have civilised men and have destroyed the human race." But even in the Discourse on Ineqacditij he recognises that the state of nature "has perhaps never existed, and probably will never exist," and that when he speaks of it he is using a hypothetical argument and not attempting to describe the actual, original state of mankind. Though in the sequel he does refer to a primitive state, he does not make that his ideal, but considers the happiest period of human existence to be " that of the develop- ment of the human faculties, occupying a golden mean be- tween the indolence of the primitive state and the petulant activity of our self-love." Savages, he holds, are mostly in this stage, " the true youth of the world " ; and all further progress has b(>en, in appearance, so many steps towards the perfection of the individual, and, in effect, towards the de- are intended to subserve tlie purposes of jn-udonco and virtue, but are capable of being wliolly turned to contrary ends." Tliis gives a niucli better sense, but it seems to require a conjectural emendation of the text, such as that wliicli Mr. Welldon adopts. ^ Arist., FoL, I. 2, §§ 15, IG (Jowett's Translation). N. E. E 50 JWUSSEAU AND ROUSSllAUISM [ch. hi crepitude of the species." Nevertheless, in spite of tliis glorification of the savage, he acknowledges that along with a multitude of bad things in civilisation there are a small number of good.^ In tho Contrat Social, as we have seen, the proportions of good and evil are reversed. Tho whole treatise is singularlj'- free from the faults that are usually ascribed to Rousseau. The most conspicuous defect in it is that he does not properly appreciate representative government (III. 15) — a defect which he shares with many persons at the present day who have not his excuse. He had not, like Montesquieu, seen the English government from a favourable (perhaps too favourable) point of view. His political ideas had been formed by the reading of Greek and Latin authors, whose only notion of free government was that of small city states ; and he himself was born a citizen of Geneva, a republic in many ways analogous to one of these ancient states, owing its political independence and its special character in a great degree to its Lycurgus, Cal- vin.- The neighbouring Swiss cantons, with which Geneva was allied, were direct democracies of the antique type, or else close oligarchies. Was it strange, then, that Rousseau should accept the generalisation that only small states were fitted for democracy, that moderate-sized states might be aris- tocracies, but that large states (unless by the device of con- federation^) mast be monarchies? But this very opinion of his should save him from the abuse commonly bestowed on him, as if he had been a doctrinaire democrat, and were per- sonally responsible for all the errors of the French Eevolntion. He fully appreciated the "relativity of politics "; he predicted, we may almost say, the part which federal government was to ])lay in the solution of political problems, and of complete democracy ho expressly says, " A government so perfect is not suited to men." ■* His views about the sovereignty of the people and about the justification of revolution are identical ' In the Left re a .V. PhilopoUs lie says, " According to me, society is natural to tlic luiman species as decrepitude to the individual ; arts, laws, governments are necessary for peoples, as crutches are for old men." - Cf. Contr. Soc, II. 7 (" Of the Legislator "). In a note lie says : " Those Avho only think of Calvin as a theologian know little of the extent of his genius." =* Contr. Soc, III. 13. ■• lb., III. 4. CH. Ill] ROUSSEAU AND ROUSSEAUISM 51 ■with those of Locke, expressed indeed in more telling language, and addressed to an audience that was suffering graver and older evils than those which had induced the English Whigs of 1688 to change the government of their country. Rous- seau's distinction of " the general will " from " the will of all," and his seemingly mystical idea of the common self i^moi codi- 7)11171), are anticipations of the political theories of the great German idealists. Kant, Fichte, and Hegel are disciples of Rousseau in a truer sense than those Jacobin Puritans, Rol^es- pierre and St. Just, by whom Rousseau has too frequently been judged.^ I do not mean to deny the large part which the idea of " Nature " as the antithesis of civilisation, occupies in Rous- seau's thinking. I only wish to insist that it cannot be said to have vitiated the great political treatise of his most mature and soundest period any more than it vitiated the political theories of Locke. That period, however, produced also Emile and La Nouvelle Helo'ise ; and it is with good ground that the cry. "Return to Nature," and the exaltation of sentiment above reason are associated in a special manner with Rousseau, and may be described as " Rousseauism." Rousseau sent his children to the foundling hospital, and could not afterwards trace them. His spiritual children can be found more easily. If one considers the most characteristic features of a great part of European thought since Rousseau's time — the literature of sentiment, the genuine or affected love for natural scenery, the reaction against rationalism and against classicism, even the pessimism of the nineteenth century, along with its deeper sense of sympathy (often more sentimental than rational) with the poor, one might say that, in some degree, we are all Rous- seau's children, — at least there are a good many of them at the present time who do not know their spiritual father. If words always meant what their etymology would suggest, if terms of controversy were always selected on strictly logical principles, the opposition between Socialism and Individualism would not lead one to expect that assertors of "natural rights '" ' On Rousseau's influence on German thouglit, cf. R. Fester, Rousseau xind die deutsche Geschichtsi^hilosoph/e (Stuttgart, 1890). On thedifl'er- ence between Rousseau's tliouglit at diflcrcnt periods of liis life, cf. Charles Borgeaud, J.-J. liOtisseau''ii lidlgionsphllosoi^hle (Geneva and Leipzig, 1883), csp. pp. 11 seq. 52 ROUSSEAU AND ROUSSEAUISM [ch. hi and worshippers of Xature — as the " not duo to human reason " — were to be found among those calKng themselves Socialists. But the fact is, that a great many of those who most loudly profess themselves Socialists are amongst those who have shown least faith in the rationality of human society. To the great confusion of logical terminology, a great many professing "Socialists" are at heart " Individualists " and " Anarchists." In defiance of scientific anthropological science and of history, they seem to believe that individual freedom has decreased with the growth of civilisation/ and that the return to a state of nature is the ideal of human progress. The name " Social- ist" may indeed reasonably l)e assumed by those who are appealing from existing social arrangements to what they conceive to be better social arrangements, not yet anywhere realised, who are dissatisfied with existing society because it is still so largely untrue to its ideal, so largely not social, not organised, but inorganic and anarchical. But this dissatisfac- tion frequently takes the form of a repudiation not merely of this or that form of political organisation, but of all institutions as such, with the exception, perhaps, of the institution of " the dear love of comrades " - — an exception which is no exception ; for love or comradeship is a personal relationship springing up spontaneously between two or more human beings. It may and does give rise to institutions; in fact, all institutions maybe said to have grown out of it. But of itself it is no institution, ' Cf. Eous.'eau, who says in the Discourse on Inequality that "the savage lives in himself ; whilst a man in the social state is ahva3's out- side himself, and can only live in the opinion of others." - Walt Whitman, wiiosc phrase is here quoted, defie? classification and argument as much as he defies everything else. He is the absolute ex- treme of Protestant individualism, an incarnate " natural rights of man " ; in him infinite self-assertion is combined with infinite recognition of the equal rights of others, and both liberty and equality are merged in a fraternity so wide and all-inclusive that all distinctions of good and bad, right and wrong, are lost in a general blaze and blare of democratic en- thusiasm. With a noble personality and the capacitj' of a certain poetic grandeur, he has become a prophet and teacher in the eyes of a good many in England who arc dissatisfied with the existing chaos and un- reality of our social structure. But it is awkward to use Walt Whitman as a guide of conscience. His appreciations are so universal. If he can liardly bo likened to " the darkness in Avhich all cows are black," he might be described as a blaze of exuberant shadowless sunlight, in which all geese are swans. On Walt Whitman one English author at least has been able to write with judgment and sobriety— Mr. William Clarke. CH. Ill] ROUSSEAU AND KOUSSEAUISM 53 such as can form a relatively permanent clothing or shelter which will outlast the individuals who wear or inhabit it ; it is no institution which can take new members into itself to supplement the living or replace the dead, and which remains as a social inheritance for those who are not yet born. It is this creation of institutions round him which most of all distinguishes man from the lower animals : the more highly developed forms of it are summed up in the word "civilisa- tion." The higher animals below man have already the germ of social inheritance. Thus, while the insect owes everything, or nearly everything, to inherited instincts, the bird learns by imitation how to build its nest and how to rear its young. Pigeons, unless th(\y have an experienced couple among them, will generally fail to bring up a family. But even the most intelligent of birds or mammalia have only the rudiments of such social inheritance when compared with man; and for this reason they remain stationary, while man progresses. " The owl," says Edgar Quinet, "has outlived Pallas Athene; the eagle has outlived Jupiter ; they have not lost a feather in the fall of the gods." ^ " They have not lost a feather " ; but neither have they learnt a note of music, nor improved their style of domestic architecture. Civilisation is a vague term, and to different persons it sug- gests different ideas. To some people it suggests railways and telegraphs ; to some it suggests bustling streets, showy shop- windows, boulevards, cafes, theatres ; to some it suggests chimney-pot hats and black coats ; to some it means Christian churches, parliaments and policemen ; - to some it means mainly art, science, and literature ; to our modern Cynics or "Rousseauists, to those whose prophets are Thoreau and AValt Whitman, it is a disease which needs to be cured by " a return to nature." ^ To analyse civilisation adequately would mean to write a ' V Esprit Noiiveaic, p. 25. - There is a well-kno\v}i story of an Irishman, shipwrecked in an un- knowji h^iid : ^vhen lie saw a man lianging on a gallows, he exclaimed, " Arrali, but this is a civilised country ! " When, soon after, he saw a man lying drunk in a ditch, he cried out in grateful recognition, " Be- gorrah, but this is a Christian country ! " ^ At the close of his eloquent essay, which bears the signiiicant title, Ciinlisation: its Cause and its Cicre, Mr. Edward Carpenter says: — " The present competitive society is more and more rajjidly becoming 54 ROUSSEAU AND ROUSSEAUISM [cii. iii complete treatise on sociology. At present let me attempt to distingiiisli its principal elements or constituents, using the term to mean what distinguishes man from the animals and what (to adopt a phrase I have suggested elsewhere ^) enables mankind to progress independently of heredity and of mere natural selection. (1) First of all, civilisation implies control over the forces of nature ; and greater civilisation implies that such control is greater. Prom the discovery of how to make fire by rubbing sticks together on to the inventions of the telegraph and the telephone, man has been learning how to use nature as his servant. Man, it has been suggested, might be defined as a tool-making animal. (2) Secondly, language makes it possible to transmit experience ; and when to language are added the inventions of writing and printing, this power of bequeathing ideas is immensely increased. A greater power of expressing and of diffusing ideas is thus one mark of a higher degree of civilisation. Man is a speaking animal ; and because a speaking- animal, he is also a rational or thinking animal, for language makes possible the psychological advance from particular images or representations to general concepts or ideas. Reflection, moreover, though it may among the great mass of human beings be mainly occupied with matters of direct practical necessity, can be employed also about everything in the universe, and about man himself, though such reflection may have only an indirect practical value or apparently none at all. Thus science, philosophy, history are among the marks which distinguish a civilised from an uncivilised people. The tales and myths of primitive races are the germs from which they spring. (3) Tliinli}', man has a delight in doing or making- things which are of no practical utility, for the sheer delight of doing or making them. This " play," or free purposeless use of a mere dead formula and husk, within which tlio outlines of the new and human society are already discernible. Simultaneously, and as if to match this growth, a move towards Nature and Savagery is for the first time taking place from within, instead of being forced upon society from Avitliout." The words " for the first time " show a curious oblivion of Itousseau, and of the Cynics. * Darwinism and Politics. Ed. 2, p. 101. Cf. Weismann Essays upon Ikrcditij (Engl, tr.), Vol. II. p. 51, where the editor of the translation, Prof. E. B. Poulton, cites my definition, of which he approved when I first hit upon it. CH. Ill] ROUSSEAU AND ROUSSEAUISM 55 control over the body and over surrounding object.'^, exists in germ among the lower animals, though with them, except among the very j^oung, it is mostly connected with sexual selection. Among human beings it is the source of art. From the wild dances and songs of the savage grow up music, poetry, the drama ; from his attempts to adorn his person, his weapons, his hut, or to represent the beasts he has seen or the gods he believes in, are developed architecture, sculpture, painting. Man is more than a mere imitative animal ; he is a creator, so far as he is able. Art, then, is another mark of civilisation. (4) Fourthly, men come to use their thinking and their making- powers to regulate their relations with one another ; i.e. their social structure comes to depend not merely on natural selection operating among competing tribes or communities, but to result in part from conscious attempts at organisation. In other words, civilised man formulates definitely and becomes fully conscious of the laws and institutions which have grown up in his community, and thereby on the one hand deliberately adopts habits of reverence for law, and on the other hand be- comes capable of carrjdng out political, social, ethical, religious reforms (or, at least, changes) in a way impossible to him at a ruder stage of existence. Man is a political animal ; and the use of written laws, which all may (potentially) come to know, and the possibility of carrying out peacefully constitutional changes, are marks of civilisation. The habit of " free govern- ment,'' i.e. of living under institutions which are not looked on as some alien authority imposed from without, or existing merely because they have existed in the past, but which in some considerable degree correspond to the saner and soberer sentiments of the more socially minded and orderly members of the community, is a mark of civilisation, not perhaps the most obvious ; for people governing themselves have often been behind those more despotically governed in some, if not all, of the other characteristics of civilisation : but it is a mark which is directly connected with the original meaning of the term. To be a dvis is to be the citizen of a self-governing political society, the highest form of which known to the ancients was the city republic of the Hellenic world. Starting from a similar self-governing town, the Romans first conquered and then Romanised and civilised the less advanced races of the Mediterranean w^orld, whilst they themselves assimilated a 56 ROUSSEAU AND JiOUSSEAUISM [ch. hi great part of that Hellenic culture which had originated in the cities of Ionia, and liad reached its perfection in the city of Athens, and which was kept alive and spread to east and Avest from the cosmopolitan city of Alexandria. And when the in- cursion of the northern barbarians broke down the fabric of ancient civilisation, it was in Roman cities above all that some fragments of it were sheltered, and it was in the self-governing city republics of Italy and in the " free towns " of the German empire, that art and the peaceful pursuits of secular life first revived and flourished. Even the Church, which through man}^ dark centuries represented the only force in "Western Europe making for peace and order and the intellectual goods of mankind, was the Roman Church, carrying on in a new form the discipline and the organisation which had originated in the Imperial City. Rousseau himself dedicates his second indictment of civilisation — The Discourse on Inequality — ^to the Republic of Geneva, of which he Avas proud to count himself a citizen. Even Walt Whitman, with his love of fresh air and with all the prairies of America before him, seems to turn affectionately to the " populous pavements " of the close-packed city that covers the island of Manhattan. It is this connection of civilisation with city life that more than anything else has caused the revolt against it. The massing together of human beings makes some good things possible, but makes the evils of human society more con- spicuous.^ It has been noticed, moreover, by several students of art and literature, that the love of the sights and sounds, the quiet and peace of the country, does not enter prominently into poetry and painting except after the rise of great cities. Still more is this true with regard to the sentiment for the wilder and more terrible aspects of nature. " The love of Nature," it has been said by a subtle critic of Roman literature, • '• is not, as wo might naturally expect it to be, a feeling much experienced by those wlio live in constant contact and conflict with its sterner forces, as by husbandmen, herdsmen, and hunters ; nor is it developed consciously in primitive times or unsophisticated races ; but it is the accompaniment of leisure, ^ Cf. Plato, L(7w.s-, 111.078: '•How can we possibly suppose that those who know nothing of all the good and. evil of cities could have attained their full development, whothcx- of virtue or of vice ? " CH. Ill] ROUSSEAU AND ROUSSEAUISM 57 culture, and refinement of life.'' ^ Like many strong feelings, it is due to reaction. Undoubted!}' some races are more susceptible to the beauty or impressiveness of natural scenery tlian others, the Celts perhaps more than the Saxons, the Italians more than the Greeks. Occupation, however, has probabl}^ in all cases more to do with the matter than race : a people of herdsmen or hunters are more likely to develop some taste for scenery than a people engaged in agriculture. But the cultured lover of nature is verj'' apt to mistake the home-sickness of the mountaineer or of the fisherman, for a purely esthetic appreciation of mountain and sea. Custom strongly affects the feelings even of the most reflective and the most logical minds : with simple and unsophisticated persons who have gone through few changes in their surroundings, custom is all-powerful.- It is said that a Shetlander, finding himself for the first time in a boantiful woodland district, was filled with a feeling of terrified oppression : he seemed unable to breathe, and was afraid the trees would fall on him. His longing for the sea and for his bare rocky islands was of the same kind as the longing of many a city-bred person for the smooth pavement and the smell of asphalt. There is probably also in most cases a physical basis in the longing for sea and mountain — a longing which many even of those who have lived chiefly in midland plains can understand. Lungs accustomed to a fresher air seem stifled amid leafy lanes and green meadows as well as amid brick walls. When such ph3''sical feelings and the associations derived from habit are left out of account, it will be found that the genuinely assthetic love of the country is in the main a product of city life. All the fine arts, indeed, require the existence of city lift' for their rise and growth. The landscape painter, when landscape painting has once become an established form of art, may work in the country, and may work best in the country, but his pictures are painted for the town : and it is to the landscape painter that we owe a great deal of our admiration of natural scenery.- Prof. Weismann has pointed out that " nearly all * Sellar, Vinjil, p. 47. On p. 4G, note, Mr. Sellar refers to two C-ennaii writers, Woermann and Helbig. " "Even such an analysis of natural beauty in tlie liicht of ])hysical fact as has been attempted by lluskin in the J\Ioderii J'aiiitera is cliielly S8 ROUSSEAU AXD ROUSSEAUISM [ch. hi tlie renowned (musical) composers and singers of the present century have come from large towns." ^ Great buildings, adorned with paintings and sculpture, may indeed be erected in the country ; but it is only in large towns that there is a sufficiently continuous demand for architecture and the imitative arts, or sufficient opportunity for studying them. By an extensive use of all modern inventions which diminish the inconvenience of distance, future generations may be able to combine, in a way we can only dream of, the advantages of both town and country ; but those who wish to begin their social revolution b}^ abolishing everything that did not exist in the tw^elfth century, or in ancient Hellas, or in unsophisticated Japan, or in the Grarden of Eden, or wherever and whenever they place their golden age, are under a strange delusion if they hope to live in a primeval forest with no governments, no .schools, no institutions of any kind, and yet to hear the music of Beethoven, or have their walls adorned with frescoes worthy of the best age of Florence. Rousseau is more consistent than Mr. William Morris or Mr. Edward Ccxrpenter : art must be expelled from the ideal state of nature, along with science, and along with government. No element of civilisation is possible without the city. But need the city be for ever wdiat the Avord is too apt to suggest to us ? — a grimy wilderness of monotonous rows of sombre and often bad brick, every chimney-pot contributing its pollution to the atmosphere, the eyes met on all sides by flaring adver- tisements of soap and pills and mustard, the ears stunned by ceaseless discordant cries of the latest newspaper with the latest murder, a pervading odour of horse-dung and of the filth of ill-cared-for, overcrowded human beings, whilst the more prosperous are arrayed in coats and hats and trousers that make sculpture impossible or ludicrous; and beyond all the dreary noises, beyond everything that offends the senses or the taste, the ever-present picture of the ceaseless struggle for existence. May we not rather call up a vision of a city, sug- gested to us partially even now by some ancient towns, and by directed to sliowing Low great artists have extended the boundaries of so-called natural beautj^, by their superior insight into tlie expressive capabilities of natural scenes and objects." — Bosauquet, History of yEsthetic, p. 4. ' Kssays upoa Heredity (Engl, trans.), Vol. II. p. 48. CH. Ill] ROUSSEAU AND ROUSSEAUISM 59 some parts of some modern towns— a city not too large, bnt of sucli size that from the upper Avindows of the Town-hall the fresh fields can he seen — a city Avith a smokeless sky and clean streets, no shops, and above all no advertisements, but a large central market for needful exchange, no one interested in making any one buy what he or she does not want, handsome buildings and large leafy spaces, all the inventions of science used to diminish irksome labour, and all the wealth of art lavished not on the gratification of private luxury, but on the adornment of the property of the commonwealth ? But it is an odd way of preparing such a commonwealth, to condemn civilisation as a disease, to exalt ignorance above science, and the savage above '■' the heir of all the ages." Every one of the elements or materials of civilisation may be turned to a bad purpose : is that a reason for wishing them destroyed ? On the same principle we might well wish that Prometheus had kept his ^^ ne^j.tn.'v v?»^*^v .^^ . . ochers. 1 - :.isy serve to iHnstrare the cetwr _ The g though the o: . .v in.ay be tl: _ - t evenly eisy not rtealised aiivwiiere : ~ 15 ---^-^ -— - •• - '- -ime , .^ - "^ society ^ ^ loo WHAT DETERMINES FIGHTS? [ch. v moral judgment, that progress takes place. Every extension of the range of persons who are taken account of, when we think of the common good, effects changes in our moral judg- ments. Moral judgments vary because societies vary in character : conflict of duties and conflict of moral judgments are possible just because each individual in all highly de- veloped societies belongs to many communities, overlapping one another. Professor Sidgwick, in the passage I quoted, recognises that other sections of the human race than our own section may have to be taken into account ; and it is conceivable that duty towards a higher and better society might lead people to think it right to destroy a society whose welfare had previously formed the standard of their moral judgments. Among conscious and reflective human beings, natural selection passes into rational selection ; and a social organism may die, while its individual members become ab- sorbed in an organism of a higher type. " 'Ere's a stranger ; let's 'eave 'arf a brick at him."^ That is primitive morality — " natural " morality, if natural means "original." The duty of kindness is only supposed to apply to members of the same tribe, class, caste, trade-union, or whatever the group may be. The brotherhood of mankind is the ideal at the other end of the ethical scale. There are indeed some sturdy individualists among us who, whether in the name of " natural rights "or in the name of " the greatest happiness of the greatest number," protest equally against any appreciative reference to the past and against any consideration of posterity in our ethical and political judgments. This is a frame of mind against which argument is difficult, as it implies a non-acceptance of that continuity of the species which one would have thought was a patent fact. The human race or, let me say, the inhabitants of Great Britain do not consist of a certain number of adult males, or adult males and females, assembled together in a sort of cross between a debating society and a joint-stock company, and entitled by the law of nature to divide all the good things of life among themselves. An assembly or national convention of all the adults of a community would be only the trustees inheriting every moment from the old who ^ Cf. /iosi«s = (l) stranger; (2) enemy. ^^ Hostis apud majores nostros is dicebatur quern nwnc peregrininn dicimus." (Cic..Z>e Olf.. I. 12, 37.) CH. v] IVBAT DETERMINES RIGHTS? loi are dying and obliged to take into account tlie interests of those who are being born. Human beings would have to be artificially cut off from all links of human kinship — to become like a band of outlaws or pirates — before they could consider the question of right and wrong without regard to the past that had produced them and without regard to the future that was even now amongst them. And with \^hat show of reason can any one sit in judgment on the past and blame men in old times for the inheritance of evil their actions or their negli- gences have left to us, while calmly proposing to decide the rights of living persons without any " superstition about the effect on posterity " ? ^ The transition from Individualist to Evolutionist Utilitarian- ism — a transition which is being accepted by the great majority of writers on scientific ethics, from whatever point of view they set out — makes what one may call a "Copernican" change in our way of considering the question of rights. The eighteenth century thinkers looked on society as made by individuals joining together, in order to secure their pre- existing natural rights. We, unless we remain uninfluenced by the more scientific conceptions of human society now possible to us — we see that "natural rights," those rights which ought to he recognised, must be judged entirely from the point of view of society. We must return to the method of Plato : in order to know what is really just, we must call up a vision of an ideal society. That is the true value of " Uto- pias " : they are rough attempts to see how our ideas of justice look when writ large in a picture of a reconstructed society. Society, as we are always being reminded, has indeed no existence except as a society of individuals ; but individuals as human beings with rights and duties, and not as mere animals, can only be understood in reference to a society. " Nature," we might say, falling back on the antithesis, made man an animal ; society has made him a rational animal — a thinking, intelligent being, capable of moral action. The person with rights and duties is the product of a society, and the rights of the individual must therefore be juflged from the point of view of a society as a whole, and not the society from ^ The phrase is used by Mr. J. M. Robertson in an article in tlio National lieformer for Dec. 6, 1891, in which he criticises a lecture of mine on the subject of " Natural Rights." Mrji\/PR<^>TY Cr CALlFORNiA I02 WHAT DETERMINES RIGHTS? [ch. v the point of view of the indivicluah As against the Hedonist Utilitarians, Intuitionalists are quite right in urging that moral- ity is based on personality, and not on a mere summation of pleasurable feelings, treated as if these feelings liad an existence per se; but the Intuitionalist is apt to treat "personality" as if that term were the solution, and not the statement of a problem. Metaphysically^ personality can only be explained by a specu- lative hypothesis about the ultimate nature of the universe — in more familiar language, about the relations between God, nature, and man; but for the purposes oi practical ethics and politics^ it is sufficient to recognise that personality is a conception meaningless apart from society. We have got the word " person " in its ethical sense from the Roman jurists, and we should acknowledge our debt by recognising the social — nay, the civic — character of the conception. Wherever, as in those famous theories of " social contract " and " natural rights," a society seems to be reasonably and legitimately judged from the point of view of the individual, such theories simply represent an inaccurate, but possibly convenient way of judg- ing any given society from the point of view of a supposed wider or higher society. The rebel against society, whether he appeals to nature or not, may be of two kinds. He may be the precursor of some new and better society, in the name of which he condemns an existing, but corrupt and decaying, set of institutions ; or he may be the survival of a ruder and lower stage of existence. The pirate and the brigand were once very respectable people, but in a social condition which has passed the stage to which they belong, they are rightly treated as dangerous criminals. Society, indeed, consisting only of fallible and imperfect beings, is apt to make mistakes, and it may now and then confuse the two kinds of rebels, and crucify a true prophet between two ordinary criminals ; though the ratio of true prophets to ordinary criminals is not as a rule so high. Whether we say that rights are in all cases created by the State or not, is very much a matter of language. There are many primitive societies, which have too little definite organ- isation to be conveniently called States, except proleptically ; it is usual to reserve the term State for those societies which have a fairly definite system of government. Moreover, within the shelter of the State there may grow up various societies or c:h. v] what determines RIGHTS? 103 associations, of a more or less volantary character — voluntary in appearance at least — and there may be surviving associations of an older kind, families, clans, village communities, etc., all of which may confer rights on their members, apart from the rights expressly conferred by the State : and some of these associations may be of an international character. The State may recognise some of these rights as legally binding ; others it may tolerate, without giving them any legal sanction ; others it may expressly forbid, as injurious to the security of the commonwealth, as allowing scope for foreign interference, or as infringing what have come to be regarded as the proper rights of individuals. This last form of State-action forms a principal element in the guaranteeing of " natural rights " ; it is interference on the part of an organised State to protect individuals from what has come to be thought undue pressure on the part of other societies, e.g. the family, the Church, guilds or corporations of various kinds, old and new. The appeal to natural rights, which has filled a noble place in history, is only a safe form of appeal if it be interpreted, as just explained, as an appeal to what is socially useful, account being taken not only of immediate convenience to the existing members of a particular society, but of the future welfare of the society in relation, so far as possible, to the whole of humanity. If it is argued that such an appeal is at least as ambiguous as a mere reference to natural rights, I answer, No ; for in appealing to social utility, we are appealing to something that can be tested, not merely by the intuitions of an individual mind, but by experience. History is the laborator^^ of politics. Past experience is indeed a poor substitute for crucial experi- ments ; but Ave are neglecting our only guide if we do not use it. This means no slavish copying of antique models, but trying to discover, from consequences which followed under past conditions, what consequences are likely to follow under similar or under dissimilar conditions now. The introduction of the conception of evolution into the study of institutions, if that conception be applied with due care, gives us in one respect a much more hopeful outlook than if we felt bound to apply to every age the same un- varying " natural " code of right and wrong. As an illus- tration, let me take the institution of slavery. To the scientific student of human history it seems almost certain I04 WHAT DETERMINES KIGHTSl [ch. v that slavery was a necessary step in the progress of hnmanit}-. It mitigated the horrors of primitive warfare/ and thns gave some scope for the growth, however feeble, of kindlier senti- ments towards the alien and the weak. It gave to the free population sufficient leisure for the pursuit of science and art, and, above all, for the development of political liberty ; and in this way slavery may be said to have produced the idea of self-government. By contrast with the slave the freeman discovered the worth of freedom. Thus slavery made possible the growth of the very ideas which in course of, time came to make slavery appear wrong. Slavery seems to us horrible : it is contrary to nature, it violates the feelings that God and Nature have implanted in our breasts, and so on. It used not to seem horrible or contrary to nature, even to many people who talked loudly about the inalienable right of liberty. There are probably many things existing now, which will seem "horrible" some day, but which now seem quite "natural " to most persons. Science must have no prejudices, and there- fore we must admit that there was a stage in human develop- ment when slavery, being useful to the progress of mankind, was not contrary to what could then have been considered "Natural rights," although when slavery is no longer an insti- tution of progressive societies, it becomes contrary to what people now consider " Natural rights." It is no use to con- struct hypothetical histories and imagine the civilisation, whose benefits we reap, and among whose benefits are those ideas that have abolished slavery, arising among some savage tribe which had never hit upon this device for securing leisure to themselves, in which to fight, to govern, to think. But an hJMorical justification of an institution is no justification for the continuance or revival of an institution, when it is no longer socially beneficial, or when the purpose it once served can be otherwise provided for. The present competitive industrial system has done marvels in the way of opening up the material resources of the earth ; those who have grown up in the shadow of it are apt to ^ That the introduction of the practice of making- slaves of captives diminished the ferocity of war is generally admitted. What is less generalljr noted is that, as Sir Henry Maine points out {International Law, p. 1B4), " One consequence of the decay and abolition of slavery was an increase of bloodshed." CH. v] WHAT DETERMINES RIGHTSl 105 imagine that it is indispensable. Those who have studied the history of slavery are not bound to any such belief. This very epoch of competitive capitalism has produced ideas which make it possible to believe in a better type of organisation in which the captains of industry shall become essentially, and not merely accidentally, the public servants of the whole com- munity. The growth of joint-stock enterprise, under a system of " free association," suggests the idea of common-ownership on a gigantic scale. The " labour-saving " machinery, which has caused the industrial revolution and brought about an unsettlement of old, comparatively stationary societies, suggests a utilisation of machinery, which shall in very truth be labour- saving and not merely labour-displacing, and which shall pro- vide the leisure that ancient communities could only secure to their citizens by slavery.^ These visions of a better society are not suggested by vague, irresponsible oracles of Nature ; they are inferences from experience, which may be true or false, but which admit of being profitably discussed. And this is the advantage which the appeal to reason and experience has over all appeals to irresponsible instincts, impulses, and claims, whether called natural rights or not. If you appeal to Nature, we may not be able to prove you wrong in your own court of appeal ; but neither can you prove yourself right. The oracles of Nature are dumb, save to those who will compel her to speak by torture, i.e. by experiment ; and, where experiment is inapplicable, by rational interpretation of experience. Whether we are attacking or defending any institution, it is always well to be very sure that we are doing so on grounds which admit of reasonable discussion. If it could be shown that democratic republics would always fall a prey to military despotism, either from within or from without, then we should have to conclude that democratic republics were incompatible with human well-being, and that monarchical or aristocratical institutions were more in accordance with the "law of nature" than democracy. If it were certain that the nations of Western Europe or of America, by checking industrial competition and by getting rid of their armies, would fall a prey to a Chinese invasion, just as the peaceful and Christianised Roman Empire succumbed * As far as possible we must use machinery as a substitute for "living tools" — the phrase by which Aristotle describes slaves, {l^ol.^ I. ■!.) To6 WHAT DETERMINES RIGHTS? [ch. v before the incursion of the northern barbarians, then it would be right to do all in our power to keep up the military and industrial pugnacity of the Western peoples, and all socialistic and peaceful projects would be contrary to the " law of nature." If it were certain that an equal or nearly equal dis- tribution of the products of industry would lead to the decay < and gradual disappearance of science, of art, and of all intel- lectual pursuits generally, and a consequent return to savagery, then any such levelling project would be contrary to the " law of nature." If it were argued that the " Republic has no need of chemists," we may be certain that it would be so much worse for that republic in the long run ; it would go to pieces before nations that did honour chemists, even if those nations were ruled by despots. The reformer of society who would convince those who hesitate to join him, from a fear not of personal loss but of social retrogression, is bound to prove that what he advocates is compatible with the welfare of society and with its progress in the future. The only "law of nature" to which we can listen must be such as will commend itself to our reason as a statement of the principles of a coherent and orderly society which will not throw away the hard-won achievements of man in his struggle with nature and with barbarism, and which will at the same time be progressive, in the sense of being capable of correcting its own faults. Any " natural rights " which are incompatible Avith such a society are only another name for anarchy. "Nonsense upon stilts" Bentham called them in his Anarchical Fallacies. Fiat JHsfifia, mat caelum^ it may be said. But what does that famous maxim of heroic virtue mean ? " Let justice be done, though the heavens fall "—a maxim admirable as an answer to those pessimists who would deter mankind from any at- tempt to better its social organisation on the ground that this planet cannot for ever support living beings. But whoever says, " Fiat jmtitia^ mat respuhlica^^^ whoever appeals to an abstract justice that is incompatible with the continuance of orderly social organisation is, wittingly or unwittingly, talking nonsense — and mischievous nonsense, too, " Justice " may be incompatible with some particular form or phase of society : that is likely enough. When people seriously appeal to justice against society, what they really mean is that a higher form of society should supersede a lower. But it would be much CH. v] WHAT DETERMINES RIGHTS? 107 better to sa}^ so directly, and not to talk about natural rights or abstract justice at all. A good cause is never benefited by bad arguments.^ If rights are determined solely by reference to human society'', it follows that the lower animals, not being members of human society, cannot have rights. This conclusion is resented by many modern humanitarians who, feeling that in some sense or other we may be said to have duties towards the lower animals, or at least duties in respect of our conduct towards them, conclude that the animals in their turn must have rights against us. If a utilitarian theory be based on a consideration of the pleasures of all sentient existence, then, whether or not the phraseology of natural rights be used, all animals must be taken into account in our judgments of right and wrong. Very difficult questions of casuistry will, indeed, arise because of the difference in grades of sentience ; and the undoubted difference in degree of acuteness of feeling among human beings ought most assuredly to be taken account of also. If the recognition of Animal Rights is compatible with the kindly use of a horse as a beast of burden, would not a kindly negro-slavery be also perfectly compatible with the recognition of Natural Rights generally ? And if we dis- criminate between what may be rightly done to the mollusc from what may be rightly done to the mammal, on grounds of different grades of sentience, should we not also — if sentience be our sole guiding principle — discriminate between what may be rightly done to lower and higher races among mankind — the lower and less civilised being undoubtedly less capable of ' In his excellent little book, First Steps in Philosophy, witli the " physical " part of which I entirely agree, Mr. W. M. Salter says : '' It miglit be better that there should be no animal or human life than that it should maintain itself by violating ethical requirements" (p. 107). Unless for those who believe ethical requirements to be determined by arbitrary and irrational volitions of Deity, I can see no meaning in Mr. Salter's proposition. Morality may include more than can properly be expressed as "social duty," e.g. the " intellectual virtues" and the duties of cultivating science and art and learning may not be capable of analysis into social virtues and duties (I cannot discuss that question here) ; but morality that would lead to the destruction of ail human life seems to me a very immoral kind of morality, though a kind of morality of which we have* had a good deal too much in the ])ast. As to the animals — I discuss that question. Is it the tiger's ethical standard or ours, which is to decide? io8 irHAT DETERMINES RIGHTS? [ch. v acute feeling ? An ethical theory which is based on the social nature of man is not directly troubled by these difficulties, though in the details of practical conduct these grades of sentience do enter in as one of the factors determining our moral judgments. The most recent English book of which I know on the sub- ject of Animals' Rights is that of Mr. H. S. Salt. "Have the lower animals 'rights'?" he asks, and answers his question, " Undoubtedly — if men have." But the question whether and in what sense men have rights, Mr. Salt refuses to discuss. He takes for granted that in some sense they have rights, and treats the controversy about rights as " little else than an academic battle over words, which leads to no practical con- clusion." The term "academic" is apparently used as a term of dispraise. For this, unfortunately, the past traditions of learned societies may be to blame ; or is a disparagement of logic and of all careful use of language merely one of the notes of the higher barbarism of the new school of Rousseauists ? I have tried to show that there is a sense in which the term '■natural rights" may be harmlessly used, but it is a sense which needs caution ; and therefore, if the term be used at all, it should not be used except in " academic " discussions. Otherwise its use can only be regarded as a rhetorical device for gaining a point without the trouble of proving it — a device which may be left to the stump-orator or party-journalist, but which should be discredited in all serious writing. Mr. Salt's justification for his assertion, that animals have rights if men have, must be discovered incidentally. First of all, I note that he appeals to the actual state of the law in England. "It is scarcely possible, in the face of this legislation [for the preven- tion of cruelty to animals], to maintain that ' rights ' are a privilege with which none but human beings can be invested ; for if some animals are already included within the pale of protection, why should not more and more be so included in the future?"^ Because a work of art or some ancient monument is protected by law from injury, do we speak of the "rights" of pictures or stones? Further, are animals capable of being parties to a lawsuit ? It might be answered, they are on the same footing permanently on which human " infants " are temporarily {i.e. until they attain full age). But ^ Auirnals' liiyhts, p. 8. CH. v] WHAT DETERMINES RIGHTSl 109 if there are rights, there are correlative duties. And whereas infants may be tried on a criminal charge, I do not know, apart from a cause celebre in Aristoj)hanes, of any such trial of animals in any advanced legal system. Thus it will hardly do to appeal to existing law in proof that animals have rights in any legal sense. Again, I note that Mr. Salt quotes with approbation the maxim of the "Buddhist and Pythagorean canons " ^ — " Not to kill or injure any innocent animal," and the words of Bentham : " We have begun hy attending to the condition of slaves ; we shall finish by softening that of all the animals which assist our labours or supply our wants." '^ Why these limitations of the jus animalium? If the animal as such has rights, who are we to pronounce judgment, according to our own human convenience, on his " innocence " ? What is the "guilt " from the tiger's point of view of her raid on a human village ? Why do we commend a cat that kills mice and punish her if she attacks a tame bird ? If the animals were consulted, they would choose to be tried by a jury of their peers, before the question of guilt or innocence were decided. The most despotic kings have always been quite willing to leave in peace those of their subjects who contributed to their conveni- ence, or whom they regarded as harmless. The Czar of Russia does not oppress any one whom he regards as " innocent." The claim of natural rights among men has meant something very much more than a claim that the innocent should be kindly treated, the arbitrary government against which they protested being free to decide the question of innocence. It may be admitted, however, that towards the lower animals we must always stand in the relation of despots ; but it may be urged that our despotism ought to be guided by a recognition of their rights. Well, then, in our exercise of our power and in our guardianship of the rights of animals, must we not pro- tect the weak among them against the strong? Must we not put to death blackbirds and thrushes because they feed on worms, or (if capital punishment offends our humanitarianism) starve them slowly by permanent captivity and vegetarian diet? What becomes of the " return to nature " if wo must prevent the cat's nocturnal wanderings, lest she should wickedly slay a mouse ? Are we not to vindicate the rights of the persecuted prey of the stronger? or is our declaration of the rights of ' Animals'' Rights, p. 3. ^ Ibid., p. G. no WHAT DETERMINES RIGHTS? [ch. v every creeping thing to remain a mere hypocritical formula to gratify jnig-loving sentimentaUsts, who prate about a nature they will not take the trouble to understand — a nature whose genuine students they are ready to persecute '? Mr. Salt injures a needed protest against certain barbarities of " sport," and against the habitual callousness of the ignorant in their treatment of animals, by his attacks on men of science and his opposition to the use of animal food. If all the world were Jews, it has been well said, there would be no pigs in existence; and if all the world were vegetarians, would there be any sheep or cattle, well cared for and guarded against starvation ? Per- haps a stray specimen in a zoological garden : turnips being all needed for human food. Cruelty to animals is rightly sup- posed to be an offence against humanitarian feeling. Our duty to the animals is a duty to human society. It is an offence against civilised life to cause any unnecessary suffering, or to do any unnecessary damage — " unnecessary " meaning, as it means even in Mr. Salt's theory, unnecessary for human well- being. This consideration will explain also why we regard cruelty to domestic animals, especially to pets, with more horror than cruelty to wild animals — especially to dangerous or injurious wild animals. We have admitted certain animals to a sort of honorary membership of our society ; and we come to think of them as standing in a quasi-human relation to our- selves, especially when we give them names of their own, as if they were persons. Of Schopenhauer, that poodle-loving hater of man, it might almost be said that he and his dog (the reign- ing sovereign for the time) formed a society by themselves. In a metaphorical sense we may be said to have duties towards these honorary human beings.^ Pain is in itself an evil, not in the special moral sense of the term " evil," but in the sense that it is an impediment to the maintenance and development of life : it is an impediment which every normal sentient being "naturally," i.e. by mere instinct, strives to escape, and this instinct is kept alert by natural selection. The growth of sympathy and of imagina- tion makes it possible for human beings to feel mental pain at the sufferings of other human beings, even of those not speci- ally connected with them, and of other animals, in a manner * Comte holds that the animals that help mankind form a part of hnmanitj-. Positive Polity (Eng. trans.), IV. pp. 33, 312. CH. v] WHAT DETERMINES RIGHTS? m and to an extent impossible in a more primitive stage of exist- ence. (The real savage and our sentimental neo-savage are very different persons in this respect.) And thus the avoid- ance of pain for other beings capable of feeling it, as well as for oneself, comes to be thought of as a duty, except when the infliction of such pain is necessary and unavoidable in the interests of human society and human progress. Thus we may be said to have duties of T^mdnesH towards the animals ; but it is incorrect to represent these as strictly duties towards the animals themselves, as if they had rights against us. If the animals had in any proper sense rights, we should no more be entitled to put them to death without a fair trial, unless in strict self-defence, than to torture them for our amusement. It is our duty to put animals to death as painlessly as possible, when we wish their death for any human end ; and similarly, in experiments on living animals for scientific purposes, it is right to prefer the less highly organised animal to the more highly organised, wherever the lower type is clearly sufficient for the purposes of the experiment. It is a duty also not to cause any suffering which is unnecessary for the properly scientific purpose of the experiment. The evil of pain is the element of permanent truth in the Hedonist protest against Asceticism ; but to make the mere fact of sentience the deter- mining principle of right and wrong in ethics is the abstrac- tion that renders Hedonism, even in its universalistic form, an inadequate ethical theory. I have already suggested the diffi- culties which would be involved in any consistent attempt to recognise in animals equal rights with human beings: on the other hand, to fix a scale of unequal rights solely from the point of view of human convenience is practically to give up basing ethics on the mere fact of sentience, and implicitly to recognise the interests of human society as our ultimate criterion of right and wrong. In the foregoing discussion of the ethical end I have included the notion of the progress, as well as that of the maintenance, of human society. And on this difficult conception uf " pro- gress " I must therefore say a few words. In the first place, it must be pointed out that progress is not identical with evolution, as that term is used by biologists.^ Natural selec- ' A confusion on this subject runs througli tlic whole of Mr. Benjuniiu Kidd's book on Social Evolution. 112 WHAT DETERMINES RIGHTS? [ch. v tion produces degeneration of organisms as well as advance. In the struggle for existence, success may be obtained by assimilation to a simpler type. Success does not necessaril}'- imply increasing complexity and differentiation of structure. And so it is with human beings regarded from a purely bio- logical point of view. The highly cultured European, who would adapt himself to the environment of the Esquimaux, must discard those habits of life which raise him above the Esquimaux from the point of view of sociology. A man may succeed in the competition of the commercial world by greater skill and efficiency in the management of his business, by stricter honesty, by turning out better goods, by employing more highly paid and capable workmen than his rivals. He may succeed by these means, under sufficiently favourable conditions, in the long run — if he gets a sufficiently long run. But under other conditions he may succeed, and may more easily obtain a rapid success, by skilful unscrupulousness, by extensive advertising, by judicious underselling and driving his rivals out of the field, etc. An old business man is said to have enforced the maxim, " Honesty is the best policy," by adding, " I've tried both " ; but there is a good deal of evidence to support the inference that " to get honest " is only the best policy for those who have already managed " to get on." The big, successful business can be conducted on better principles than the struggling one. When by reflection we have once reached an ethical stan- dard, when we judge human conduct from the point of view of an ideal society, we become very fully conscious of the discrepancy between "adaptation to environment," which means pleasure and the absence of pain, and advance towards ideal excellence ; and the pessimist is at hand to declare that all intellectual and aesthetic and ethical advance means only an increase of sorrow. Increasing complexity of structure makes adaptation to environment more difficult, except in so far as the euvironment can itself he controlled and altered. But this control and alteration of the environment is just what the intellectual conquests of mankind make possible. As we understand nature better, and as we understand human nature better, we can secure adaptation and adjustment by bending nature in many ways to ourselves instead of bending ourselves in every respect to nature. The torrent that sweeps awa3^ CH. v] WHAT DETERMINES RIGHTS? 113 the rude hut of the savage, if confined within barriers and regulated by sluices, will grind corn and supply electricity for the service of civilised man. The energy and desire to excel which makes the Indian scalp his enemies is identical with that " last infirmity of noble mind " which may stimulate the researches of the savant, lighten the labours of the legislator, and even add inspiration to the imaginative work of the crea- tive artist, as it undoubtedly does to the performance of the actor or of the musician. "We change the channels in Avhich competition runs, and it becomes beneficial instead of hurtful. May we then attempt a definition of Progress, in the only sense in which Progress can be an end of action, as such in- creasing complexity of structure as is compatible not only with increasing "integration" but with increasing, or at least un- diminished adaptation to environment ? This definition, it may be objected, is only the old commonplace about " Order and Progress " disguised in a new form of Spencerian phrase- ology. Well, in a sense it is, but it is the old commonplace divested of the fallacy which, by separating progress from order, identifies progress with mere change — with mere insta- bility. The old practical difficulties still remain, of course. Change, variation, increasing complexity necessarily unsettle the existing adjustments, which, however, are apt to seem more settled and stable than they really are. But the merit of the suggested definition of progress is this : that, while the preference is given to the more highly developed structure, the need of adaptation to environment is not ignored, and the practical importance is indicated of adapting the environment, so far as possible, to the higher structure. The mere fact of adaptation to environment, i.e. the mere fact of contentment, pleasure, absence of pain, absence of effort, is of itself no proof of excellence. The more complex structure, it must be noted, is not per se the higher, unless there is greater "integration," as well as greater differentiation.^ If the complexity be such ' Complexity in any case is not the same thing as mere complication. When " simplification " is accepted as an ideal, it must be clearly under- stood that simplification does not mean loss of organs. " Simplification " is really an ambiguous way of expressing " greater integration " as an ideal, because it may also mean degeneration. A concrete illustration may help us to see more clearly the true relation of complexity to pro- gress. A man who can talk several languages with ease, who is well acquainted with history and literature, who has some knowledge of N. K. I 114 IVHAT DETERMINES RIGHTS'! [ch. v that in no conceivable conditions could the organism work well, the more complex is not higher than the simpler. But tiie more complex structure which is capable of working better in suitable surroundings than the less complex may work worse in inferior surroundings ; and yet we should not be jus- tified in calling it ethically inferior, simply because of that want of adaptation. This is one way in which the defect of the strict Hedonist ethics becomes apparent. To the Hedonist the mere fact of contentment should be enough. Socrates dis- satisfied, however, is better, as J. S. Mill says, than the pig satisfied ; but Socrates dissatisfied is not the ideal. The want of adaptation and the consequent pain is a proof of imperfec- tion. The higher natures have always to suffer just because they are in advance of their surroundings.^ But for the future well-being and better-being of society, even this suffering is to be preferred to an adaptation attained by the sacrifice of any form of realisation of human faculty which is not incompatible with the general well-being of an improved society. Even a sufficient dole of bread all round would be dearly purchased at the cost of stopping the work of the savant and the artist. Those who trj^ to live by bread alone will soon have to live on an inferior kind of bread. As I have tried to show in a pre- vious chapter, the only consistent assailants of civilisation are those who, like the Cjaiics, are deliberatel}^ prepared to go back to savagery ; and if they trj^ to put their precepts into prac- tice, whether by using dynamite, or by refusing to submit to sanitary laws, civilised society must take the necessary mea- sures against them. several natural sciences, wlio can climb mountains, and ride, and row, who can keep liis health and vigour either in town or country — " an all- rouud man," in fact — is a more efficient person in everj- way than one ■who can onl^' get on in a particular groove. But he who can get on in a particular groove, though only in one, is more efficient than the person who knows several languages, but cannot express himself intelligibly or easily in an.y one of them, who can do many things, but does them all badly, etc. Dr. Johnson's warning is always useful : " A man may be so much of everything, that he is nothing of anything." (Hence the sound- ness of the precept in learning — to aim at knowing everything about something, and something about everything.) When we ask, not which individual stands " higher," but which society, the problem is necessarily much more complicated. ' Of course, the lower natui-es in a superior environment suffer also. Punishment is one form of that suffering. CH. v] WHAT DETERMINES RIGHTS? 115 In conclusion, there are two questions about " natural rights" which might claim to be noticed. The first concerns a matter of scientific or theoretical convenience ; the second concerns a matter of practical or political convenience. (1) Ought a treatise on politics to begin with a statement of individual rights ? (2) Ought the constitution of a countrj' to guarantee certain rights to its citizens, and to protect them from legisla- tive interference '? With regard to the first of these questions, I should only say that such a treatment presents some apparent logical advan- tages, but has the drawback of being chieffj^ associated with theories of Natura,l Law, which assume that we can formulate natural rights irrespective of, and prior to, any consideration of society. The second question is practically the question whether a rigid constitution, like the American, or a fluid constitution like our own, is preferable. Now that is a question which hardly admits of a general or abstract answer. In some cases a writ- ten constitution is an inevitable necessity. The stability of the Federal constitution of the United States has been of an undoubted advantage to that country ; in the reverence for its written constitution its citizens have found a safeguard against the instabihty that might have been expected to arise among a people whose independent history began in the violence of a revolutionary war and in a professed breach with the traditions of the past, and whose numbers are constantly being recruited by the fragments and separated atoms of alien societies. On the other hand, the rigidity of the constitution made a war necessary in order to get rid of the institution of slavery, and of the idea that there was a " right " of secession. And it is possible that other questions ma}' arise in which a conflict between modern needs and the theories of the eighteenth century about individual rights may prove harsher and more terrible because of the barriers placed in the way of change. With regard to the Staie constitutions in America, the jealousy of legislatures leads to the citizens every now and then making the attempt to legislate for themselves on minute points, the result being called a " constitution." This can only be regarded as a very clumsy method of legislation. A far better and safer way of guarding against the recklessness or corruption of legislators is the Swiss device of the ReferenrfiDii ii6 WHAT DETERMINES RIGHTS! [ch. v — to let the legislators do their work, and then subject it as a whole to the approval of the electorate.^ In regard to some particular rights, as we shall see in the following chapters, something may be said for permanent and express guarantees such as we have not yet been accustomed to feel the need of in this country. ' The case for written constitutions and for the referendum is very lucidly and ably argued in Dr. Charles Borgeaud's work, £tablessement et Revisions des Constitutions en Amerique et en Europe (Paris, 1893). Many of those, Avho in this country are most willing to adopt political in- novations, feel that the time has hardly yet come when it would be safe to crj'stallise our fluid constitution ; and even the referendum might, if pirematurely introduced, impede some salutary changes. The arguments for and against the referendum do not, however, belong to my present svibject. PART II PARTICULAR NATURAL RIGHTS 117 CHAPTER VI THE RIGHT OF LIFE I PROPOSE, ill this and the following chapters, applying the results now reached, to examine in detail the most prominent of those " natural rights " which have been claimed in the American and French declarations. In several of the Ameri- can State-constitutions are specially enumerated those " of enjoying and defending life and liberty, acquiring, possess- ing, and protecting property, and pursuing and obtaining safety and happiness." The right of life or the right to life may reasonably be considered first. Now, what does this mean ? («) There is the animal instinct of self-preservation, which undoubtedly is "natural." It represents a tendency which we may trace farther back even than the animal world, and may identify with the vis inertice of the physicist, with what Thomas Aquinas calls the tendency of every substance to seek the preservation of its own being,^ with what Spinoza calls the conatus sese con.se rccmdi.^ But what sense is there in calling this natural instinct a " right " ? If by natural rights be meant those rights which a well-constituted society ought to guar- antee to its members, then whether preservation of life is to be guaranteed or not must surely depend on whether the life is valuable to the society or injurious to it, or on whether, though not valuable, or even to some extent injurious, other considera- tions of general security, etc., make it expedient to give the preservation of such life the support of the organised force of the community. The natural instinct to preserve life is an instinct which may be furthered by reflection, and it may come to be thought a duty to preserve one's life. But, on the other hand, the natural instinct may be overcome by reflection, and it may come to be thought a duty not to pre- serve life, or only a secondary duty, subordinate to others, ' fSunwia, la 2ae, qu. 94, art. 2. ^ Ethica, III., Prop. 7. iia I20 THE RIGHT OF LIFE [ch. vi Even apart from reflection the instinct to preserve life often gives way before other instincts, e.g. the desire to preserve off- spring, or even the desire to gratify passion. The principle that there is an inalienable and imprescriptible right in all men to preserve their lives, however much social utility may demand the sacrifice of some lives — still more the principle that all sentient beings (for where among them are we to draw the line, if we once pass beyond the circle of human society ?) possess such a right — would bring all regu- lated action to a standstill, and would lead to a rapid disap- pearance of the civilised men who adopted such a principle before barbarians who did not, or, if all mankind adopted it, to a disappearance of human beings before wild beasts. Re- stricted to human beings, the idea of such an inalienable natural right undoubtedl}' lies at the back of the objection to capital punishment, although the plea for its abolition is usually supported by utilitarian arguments, such as, that a convicted person may afterwards be discovered to be innocent and that therefore no penalty should be incapable of being reversed, etc. Now, if the right to preserve life has any meaning, it must include the right to defend life, and that may involve as a matter of necessity the right to take the life of others (men or beasts). It is easy for the theoretical moralist to say that self-defence is justifiable, but that under no circumstances is aggression justifiable ; as a matter of fact, those who justify aggression among civilised communities justify it, as a rule, on the ground that what appears aggression is really, directly or indirectly, self-defence. All preventive measures may be classed, by an unsympathetic onlooker, under the term " aggression." To be able to call a measure " a measure of self-defence " does not of itself prove that measure to be justifi- able, nor does calling it "a measure of aggression" of itself prove it unjustifiable. We must know wliat is being defended, and on wliat aggression is being made, before we can know whether the defence or the aggression is justifiable in the interests of some particular society, or of humanity as a whole, or of some important part of it. Now on the same general principle on which the man who is attacked may, with the conscience of the world approving him, kill his assailant, if he has reasonable grounds for be- lieving that so strong a measure is necessary for preserving CH. VI ] THE RIGHT OF LIFE 121 his own life — on tlie same principle an organised society- may use the necessary force (which may include destruction of life) in order to secure its members against loss of their various guaranteed rights of life, liberty, securit}^, etc. This will justify at least some wars, and the use of such penalties for the punishment of offenders as will save the communit}- from danger. If possible, punishment should aim at the restoration of the offender to the character of a good citizen ; but whether in any case that is possible or not, punishment must at lea^t serve as a deterrent to other possible offenders, and it must keep the more dangerous criminal from doing further injur3\ Whether the punishment of death is necessarj- or not, and to what offences it should be limited, is thus a question of social expediency ; and among the elements that must be taken account of in determining this social expedi- enc}^, the prevalent opinion on the subject is an important factor which it is alwa3^s unsafe to neglect. If there is a widespread horror of the infliction of the punishment of death for some offences or for all, the legal enactment of the punishment may do more harm than good. When juries are induced to bring in a verdict of "not guilty " because, con- trary to their sentiment, death is the penalty for the offence of which they really believe the accused to be guilty, societ}' suffers by having a criminal let loose upon it, and by a weakening of the sense of responsibility on the part of those called to discharge a public duty. On the other hand, whereas to many sensitive and cultured natures a long term of im- prisonment may seem a much more terrible penalt}^ than a quick and probably almost painless death, the popular senti- ment about death may make it expedient to retain the penalt}' for the gravest crimes, experience seeming to show that, if really enforced, it serves the purpose of a deterrent better than any other penalty. The growing attention paid to the element of heredity in the production of crime leads many persons to recognise that hereditary criminals should, if possible, be kept from propagating their undesirable qualities. This in some cases may reinforce the argument for the death-penalty, es- pecially as life-long imprisonment is not only very cruel to the individual, but very costly to the community, it 1)eing impossible to make the labour of convicts profitable without competing in the labour market to tlie disadvantage of the 122 THE RIG FIT OF LIFE [ch. vi non-criminal population. On the other hand the sense of the value of all life is on the whole a useful moral factor in societ}^ and, wherever it seems safe to do so, the penalty of death may with soine advantage be abolished. To put a human being to death means to give up the problem of making anything of him. Some criminals who have not com- mitted murder may be more dangerous than some who have, but the popular feeling about a fitness between penalty and offence may render it desirable to restrict the death-penalty to such cases, unless and until the popular sentiment can be altered. The murderer, provided that he be not an insane person afflicted with homicidal mania, is indeed less likely, if let loose on society, to repeat his offence than the thief, the forger, the person guilty of cruelty to children or of assaults on women ; and if the protection of society from those who have already committed crimes against it were the only matter to be considered, the penalty of death might seem quite un- reasonable as applied to the murderer alone. But the effect of the penalty as a deterrent to others is the more important matter, and the average sentiment on the subject is therefore of essential moment. As has frequently been pointed out, the chief or sole reason for visiting murder with a severer penalty than any other crime, is to remove the inducement which the person committing any other offence (such as robbery or rape) might otherwise have to add murder to the crime already committed. If you hang for everything that moves j'our in- dignation strongly, the criminal is tempted to get full value for the price he may have to pay, especially as murdered persons cannot appear as witnesses in court. The growth of a senti- ment against any use of the punishment of death was chiefly due to the reckless use of the penalty for offences of very different kinds. The individual has no inalienable right of preserving his life against the society which secures him from aggression. This is admitted, I believe, by all the theorists of natural right except anarchists. Continued obedience, including the acceptance of laws which in certain cases impose the penalty of death, is indeed made conditional on the general security and protection afforded by these laws. But what rights of self-pre- servation has the society itself ? The necessity of a society's preserving itself is, on the principles of evolutionist utilitari- ^ CH. vi] THE RIGHT OF LIFE 123 anism, made the basis for those rights which the society as a whole has against its members — rights which might be called "natural " in the sense of being necessary to the existence of the society, but which are not usually called "natural," be- cause the theory of natural rights belongs to an individualistic type of thinking. On the other hand the right of the society as a whole to maintain its existence against rebels within it, or against the hostility of other societies, may be called "natural,"' in the sense of not depending upon any human institution. Such " natural right," however, as we have seen, is identical with might or force. Even civilised nations are still to one another in Hobbes's " state of nature " — a state of war miti- gated only b}^ the growth of a certain international moral sentiment and the consequent observance of a certain code of honour, as it might be called, which, having a quasi-legal character, is termed International Law. The idea, however vague and ill-defined, of a community of civilised nations, and the still vaguer and less-defined idea of a possible community of all mankind, do give a certain rudimentary social meaning to the " rights " of political societies ; and it is a convention of International Law to treat each society w^hich can manage to assert and maintain its independence as a unit which has a certain right of self-preservation. The point at which a group of rebels becomes a separate and independent State, or the point at which a revolutionary party becomes the de facto government, are matters on which other nations may decide differently with- out necessarily contravening any principle of international law or morality. The existence of any particular social organism (either a political society or any other), not being of an abso- lute value, but simply a means towards the well-being of individuals,^ there can be no absolute moral right of self- preservation in a society against some higher or better type of society in which these individuals may be absorbed, or against the formation of more closely coherent and better societies out of an ill-compacted unity. Thus we do not consider that humanity lost, but the reverse, by the absorption of Tuscany in Italy, or by the separation of Belgium from Holland. The right of self-preservation in a society is only valid against individuals who would break it up into mere chaos, not against ' I emphasise the word " particular," because the existence of a social organism of some kind is essential to the well-being of individuals. 124 THE RIGHT OF LIFE [ch. vi au}' better form of society (whether previously existing, or in process of formation) which ma}' take its place. "Where societies are in a process of transition, it may indeed be very difficult for individuals to decide where their strongest duty of allegiance lies ; and in our historical judgments we are fre- quently compelled to give our warmest praise to some of those who from unselfish motives have been loj'al to lost causes or to causes successful at the time, which we have come to consider mistaken. In judging about the value for mankind of revolu- tions, of secessions, of unifications, of annexations, we gain nothing in clearness of thinking, but the very reverse, by talk- ing about all nations or tribes as if their unity was of an abso- lute character, and a> if the rights of such tmits as against one another had any existence except in the opinions of human beings, which opinions may change, although in regard to such matters historical prescription is one of the most important factors in keeping opinions uniform. Past history*, or past tradition belief is more important than fact in influencing popular sentiment), determines to a great extent what societies seem '• natural " units with rio-hts worth struo-glino; for, and what societies do not.^ (6) Does the right to preserve one's life imply the right to put an end to it ? If the right possessed bj' an individual over his own life is analogous to the right possessed by him over pro- perty, it might be argued that the right to retain implied the corresponding right to destroy. On the other side it might be urged that the destruction of life, bj* putting an end to all rights, contradicted the very idea of individual rights (which are all based on the primary right to preserve life), and there- fore could not be one of them. Between these two abstract arguments I shall not attempt to decide. If, on the other ^ In. dealing with the question of the right of self-preserration. I have unavoidably been. led to refer also to the right of liberty or independence. It is one of the proofs of the abstractness of the theorj- of natural rights, that it obliges us to separate elements that are inseparable in fact. This is an objection which applies, indeed, to every attempt to arrange human relationships under distinctive categories, though it applies much less to the grouping of them according to institutions, e.g. the family (or if that seems to assume a definite type of organisation, say the relations of the sexes and the relation of parent and child), industrial relations, etc., than to the grouping of thera according to the recognised or alleged rights of individuals. CH. vi] THE RIGHT OF LIFE 125 hand, self-preservation be regarded as a social duiij^ the ques- tion will still arise whether a life that is no longer of any- utility to the community may not rightly be taken ; and if so, whether we may not say that the individual in question has a right to take it. It is clear, however, that, when we look at the matter from the social point of view, it must be the society and not the individual that ought to judge. Individuals who may feel their life a burden to themselves may still be capable of some social service ; and, if they were occupied in doing such service, would most probably feel their life less of a burden : while those who are of no social utility, and are, in fact, a burden to others, may not be inclined to remove them- selves. Very different views have been held respecting suicide at different times ; and the tendency to seek refuge in death varies greatly among different races. The Christian Churches have universally condemned it in all circumstances ; but popular sentiment among Christian nations has been ready to find excuses for it in certain cases. The conflict between law and sentiment in our own country leads to the customary verdict of " temporary insanity " wherever a plausible pretext can be found, and sometimes where it cannot. At the most, however, suicide is excused, but not approved. When a de- tected scoundrel takes his life in order to escape his trial or his punishment, people may agree with Aristotle ^ in calling the act the act of a coward, rather than of a brave man ; and j^et there is often a feeling of relief at his disappearance, and sometimes even a qualified admiration for the relative courage of the act. The unsuccessful patriot, who kills himself to avoid dragging out a dishonoured existence, or in despair at the failure of the cause to which he had devoted his life, is looked on with admiration, in spite of the effect of Christian teaching, Philip Strozzi, who killed himself through fear that torture might extract from him revelations injurious to his friends, is said to have prayed that, if he must be damned, he might occupy the same part of hell with Cato."- In the case of some suicides, we blame social conditions rather than the indi- vidual ; a poem like Hood's Bridge of SigJi>i represents a ver}' widely diffused sentiment. Thomas Aquinas (Summa, 2a, 28e, qu. 6-i, art. 6) lays down ' Eth. Nic, III. 7, § 13. - Leckj", European Mo)'als (ed. 3.), H. p. 56. 126 THE RIGHT OF LIFE [ch. vi unequivocally that "to kill oneself is altogether unlawful, for three reasons. First, because naturally everything loves itself, and consequently everything naturally preserves itself in being, and resists destroying agencies as much as it can. And therefore for any one to kill himself is against a natural incli- nation, and against the charitj^ wherewith he ought to love himself. And, therefore, the killing of oneself is always a mortal sin, as being against natural law and against charity. Secondly, because all that any part is, is of the whole. But every man is of the community ; and so what he is, is of the community ; hence, in killing himself he does an injury to the community. Thirdly, because life is a gift divinely bestowed on man, and subject to His power ' who killeth and maketh alive.' And therefore he who takes his own life sins against God." The last of these arguments is identical with that used by Socrates in Plato's Phcedo (62). The second is that of Aristotle m the fifth book of the Ethics} The first, which Father Rickaby (from whose translation I have quoted) considers " perhaps the best of the three," is the only one that turns on the idea of a Law of Nature. If there is any force in the argument, it seems equally applicable to all actions contrary to natural inclination, and certainly to many ascetic practices and abstinences, which may be regarded as slow suicide, and which, so far from being condemned by Catholic theologians, ma}^ even constitute a claim to saintship. Sir Thomas More, who died for his constancy to the Roman Catholic faith, suggests in his Utopia the expediency, not merely of permitting, but of recommending suicide to those suffering from incurable diseases ; no suicides, however, are to receive honourable burial who have not received public authority for the act. Something like this suggestion of the Utopia was actuallj'- the custom in the Greek colon}^ of Massilia (Marseilles). If a man wished to die, he must apply to the Six Hundred ; and if he made out a good case, he was allowed a dose of poison.- Not a few physicians have felt the terrible cruelty of a moral code which makes it a positive duty on their part to prolong hopeless suffering. Yet it is clearly a matter that cannot be left to individual responsibility. Would a license to die necessarily be a more injurious institution than "that ' Kill. Nic, V. 11, § 3. - Valerius Maximus. II. 6. CH. vi] THE RIGHT OF LIFE 127 charitable perjury of juries" (as Mr. Leckj' calls it) to which we are accustomed ? (c) The subject last discussed ma}^ suggest the question whether the right to life does not mean something more than the mere right to maintain life under certain conditions — a right which is fully secured to all inhabitants of the United King- dom by our Poor Laws. The American declarations speak of enjoying life ; and this implies an assertion of a natural right to a life worth living. But this includes all the other natural rights, and cannot, therefore, be discussed as a right by itself apart from them. As a matter of history, the demand to enjoy and defend life is simply part of the protest against arbitrar}^ government ; it is the demand to belong to a com- munity with responsible government. {d) A very important, but often neglected question remains. Does the right to life include the right to be well-born ? — that is to say, the right to start with a hereditary equij)ment which at the least shall not foredoom its possessor to hopeless misery ? If this right is to be recognised, there must be a good deal of interference with some other alleged natural rights. When Robespierre put forward his " Declaration of the Rights of Man " in the Jacobin club, it was opposed by one member only, Boissel, who proposed in place of it another, which began : Lefi droits natureJs des sanscidottes consistent dans la facidte de se reproduiye, de sliahUJer, et de se nouriv. " The natural rights of the unbreeched are to breed, to dress, and to feed." This Declaration, we are told, was received with general laughter, and no one supported it.^ The order in which these " natural rights " are stated corresponds on the whole to the order in which the " proletariat," true to the etymology of the word, exercise these "natural rights." The precept " to be fruitful and multiply " is observed with very little regard to the possibilities of food and clothing. The in- stinct of reproduction and the instinct to obtain food are the primary " natural" instincts of all animals ; the desire for cloth- ing among human animals, insufiftciently covered by Nature, may be regarded as having developed out of the natural impulse to seek shelter, except where, as in warm climates, it exists under " natural " conditions simply as the desire for ornament or ' Duvergier de Hauranne, Ilisfoire du gouvernement jiarlemenfa/re, I. p. 277. [28 THE RIGHT OF LIFE [ch. vi from , ideas about decency. In such a statement of natural riglits there is certainly no " sacrifice of the natural rights of living people to a superstition about the effect on posterity." ^ Posterity is provided with life ; but there is no regard paid to the quality of the life bestowed on those who have never been consulted. Might it not be argued that, as children have no voice in choosing their parents, those who are called into existence without their own consent should have such a life secured to them that they would have consented to accept it had it been possible to consult them ? Such an argument however strange it may seem, is of the very same kind with the argument that a government, if it is to be obeyed, must either have been consented to by the subjects, or be such as they would have consented to. Both arguments, it may well be said, refute themselves by being unworkable. Obedience cannot depend merely on consent; else every government, and the coherence of every political society, would be perpetually at the mercy of every discontented or disorderly individual. A liberiim veto in the hands of every citizen would produce anarchy more surely even than did the liberum veto of the Polish aristocracy. Similarly, no ameliorations of the evils of human life, that we can conceive of in this world, will ever prevent some of the children of men from uttering, in the bitterness of their soul, the wish that they had never been born. A society of sincere and consistent pessimists, if such persons exist, and if a society of them could exist, might decide that the gift of life was not worth handing on ; but such a society would thereby rapidly become extinct. The inevitable work- ing of natural selection determines that those who, blindly or knowingly, believe in the worth of life must always supplant those who, wisely or foolishly, disbelieve in it. The creed of ' In his exposition of Natural Law, Prof. Lorimer lays down that " the right to be involves the right to reproduce and multiply our being "; but at the end of the paragraph which expounds this natural right, we are told that " A man who cannot bestow a human education on his children has no more natural right to marry than a man who cannot beget ihem^'' {Institutes of Law, pp. 176, 177.) What is the good of declaring rights one moment and revoking them the next ? But this is what has to be constantly done by the theorists of natural rights, when they are not anarchists. And when they are anarchists, the ungratitied natural rights of every one land us very soon in the helium omnium contra omnes. CH. vi] THE RIGHT OF LIFE 129 pessimism by its very nature cannot prevail ; it can never be anything but a " bye-product " of growing reflectiveness. But the growth of reflectiveness, and of imaginative sympathy, must make one generation take thought for those who are to come after. Yet those who denounce the wickedness of the rulers of mankind in the past, and those who treat the question of political obedience in the anarchical fashion to which I have just referred, are often very ready in their turn to dis- regard the interests of posterity, and even to proclaim such disregard as a part of the natural rights of those now living. It may be objected that any attempt to establish the right of the unborn is hopeless, because the very last thing to which human beings will submit is interference in such a matter as sexual relations. The objection is false as to fact. At the present time the vast majority of people in every orderly society do submit to a great number of " interferences " of custom and of law. Even amongst savage tribes there are some set prohibitions as to marriage, rigidly observed. Among ourselves, and in kindred societies, over and above the legal preference given to monogamy, the exclusion of marriages within certain prohibited degrees, the penalties attached to certain sexual acts, and, in addition to legal enactmep.ts, the sentiments which are connected with what the law allows and forbids, we have, especially among the upper and middle classes, a whole series of interferences on the part of " society " with the freedom of individuals — interferences expressly in- tended to check the " natural " consequences of " natural " instincts. The social prohibition of what are considered " un- suitable " marriages is a very strong one, and interferes greatly with the operation of natural and sexual selection. A great deal of what is often blamed as the selfishness and worldly ambition and money-grubbing of the middle class is the out- come, not of direct individual selfishness at all, but of a highly-developed feeling of responsibility towards offspring. The pity of it is that so much of the suffering and sacrifice of individual happiness, caused by the social or parental pro- hibition of an imprudent or an unsuitable marriage, does nothing to improve the character of the race, and is often directly injurious. But the moral pressure exerted in behalf of an imperfect or false idea is a sufficient proof of what a N. K. K I30 THE RIGHT OF LIFE [ch. vi more enliglitenecl public sentiment could do in the way of direct or indirect control of parentage. Wherever the stan- dard of living rises, and a greater security of economic condition is attained, the " virtues " of the middle class are assimilated ; the most improvident, as might be expected, are those whose economic condition is the most uncertain. The children of the slums marry, or at least produce offspring, too early ; among the dwellers in villas marriage is frequently postponed too long for the physical and moral well-being, both of the persons directly concerned and of their offspring. In this bourgeois prudence, considerations of health occupy a very minor place. The practice of life-insurance serves, among the men at least, to introduce a certain minimum standard of fitness ; and business success is, of course, some test of a certain degree of vigour — a test that again applies to the men only. But natural selection in this matter operates under great limitations : the value of " ability to marry " as a test of fit- ness for parentage is vitiated by the inheritance of property, and sexual selection, so far as it operates freely within the limits of persons considered "eligible," only excludes some of the extremer cases of physical unfitness. Now, is it quite vision- ary to suppose that, at least among those persons who exercise this aristocratic and bourgeois virtue of prudential forethought, the meaning of mesalliance and of unsuitability might come to be altered, and that cancer, insanity, consumption might be substituted as impediments to marriage for a deficiency of quarterings, a grandfather in retail trade, or (most usually now) a grandfather who did not leave behind him a sufficient sum of money, however acquired ? But no alteration in the implications of parental prudence will affect those whose economic condition is the worst. A general improvement in economic conditions would, of course, mean a higher standard of living. But until that is brought about, the deterioration of the race goes on unchecked. The famines and pestilences of ruder stages of society exercised a severe natural selection by killing off those least fit for the struggle. But sanitation and philanthropy have checked the ravages of the most deadly of these pestilences, and, although there maybe great want and suffering, deaths from starvation are rare. It is true that natural selection still works with cruel license among the children of the poor : so that in the CH. vi] THE RIGHT OF LIFE 131 lowest economic stratum there is more selection of children than among the middle class, Avhile there is less check on the instinct of propagation. If the children of the proletariat were better cared for by the community, the check of natural selection would cease ; and it has been very seriously argued that free education, if supplemented by free food and free medical attendance, would simply tend to increase the physical deterioration of the race by removing natural selection, and at the same time to increase population by removing such prudential checks as may now operate to some extent among those who are not in the very lowest depths of hopelessness. This argument contains a certain element of fallacy : for any- thing that helped to give the new generation a lift up in respect of proper nourishment, intelligence, and standard of comfort, might do more than counterbalance any weakening of the almost non-existent sense of parental responsibility, which, when it is roused, works so often at present in wrong directions. But the argument contains this important truth, which those who use it and those against whom it is used are alike slow to recognise — that the assumption of responsibility on the part of the community towards the children of the community points logically to the assumption by the com- munity of some control over the existence of these children. Those who may become parents cannot be indefinitely relieved of responsibility ; if they are relieved of it in one direction, they must be made to feel it in another. If the State (i.e. the community) should ever come to guarantee to every citizen, not a bare minimum of subsistence, but a fairly comfortable subsistence, requiring the necessary amount of work from every one capable of it, the State must take precautions to ensure that the number of incapables shall be as small as possible; in other words, if the State becomes a general employment agency and insurance company, it must exercise the same kind of prudence which such societies have to exercise at present. If it does not, the quality of its citizens must deteriorate, and the conditions of work for those who can work will become more unpleasant, or else there must be a continual degeneration towards a lower and lower scale ot existence, till the society sinks into barbarism, or falls a prey to some stronger community, which, either through remaining more under the sway of natural selection, or through having 13 2 THE RIGHT OF LIFE [ch. vi adopted some system of rational selection, has not entered on the campaign with an army of hereditary wastrels. Many persons are ready to accept the idea of responsibility towards the unborn, but not to accept the idea of State-inter- ference in the matter. Such things, they sa}^, must be left to the conscience of the individual ; the family is a sphere too sacred for legal interference, Unfortunately for this argument, the State has already interfered with a great many of the institutions of the patriarchal family. The •paterfamilias can no longer chastise his wife or even his children according to his own irresponsible judicial decisions ; he can no longer decide whether they shall have any education or none ; he can no longer hold his house as a castle against the sanitar}' in- spector. The law, as I have already pointed out, decides that certain marriages are unlawful, and consequently that certain children are illegitimate. How if the meaning of illegitimacy were to be changed ? or, if that suggestion sounds too startling, how if it were to be enlarged ? The fatal defect of trusting to private prudence and conscientiousness is that it operates least just where it is most wanted ; the prudent and conscientious therefore increase in a smaller ratio than the imprudent and careless. In a democratic community, or, indeed, in any community, a large amount of public sentiment on the subject would be necessary to carry a law enforcing a health-certificate as a requisite for lawful parentage, or to make the law effective if it were carried ; but that does not prove that the reform could operate without the law. A law is the judgment of the people when sober, and it serves as a check on what they might do when drunk with passion. A law against bigamy does not absolutely prevent bigamy, but it diminishes the number of bigamists. The view of criminality as to a great extent of the nature of disease is a strong argument for certain punishments which at first sight it might seem to condemn. The criminal who is put to death, or who receives a very long sentence of imprison- ment, is, at least, prevented from propagating his species.^ ' The ferociovTS penalties enforced till lately under tlie criminal law produced a reaction against all corporal punishment, a reaction which some legal reformers feel has now gone too far. The making of eunuchs for reasons of luxury, or jealousy, has caused the idea of sterilisation to seem repulsive, so that a defender of /hiimaW Iiighti>,\i'kG Mr. Salt (p. 41), CH. vi] TFIE RIGHT OF LIFE 133 There is another aspect of this question of the right of the unborn. As I have said, we cannot separate the discussion of each "natural " right from the others. The question of the equaUty of the sexes is very constantly treated as if it stood by itself, and could be settled on its own merits. Supposing all occupations opened to women, and women put on a footing of equality with men so far as legal and political rights (and so far as legal and political responsibilities — for that also would follow) are concerned, a little thinking will show that the average woman would always be at an economic disadvantage in competition with the average man (I am not dealing with cases of exceptional ability), because of the interruption caused to her work by the bearing and rearing of children. And in the interests of the children to be born, that interrup- tion ought to be much greater than it is at present in the lives of women who are wage-earners. The average man at present works for such wages as will support himself, a wife and children ; the average woman, for what will support herself alone, and generally on a lower scale of expenditure than the man. The man " without encumbrances " gets the economic advantage of the standard set by the average man. The woman with encumbrances gets the economic disadvantage of the standard set by her unencumbered sisters, who are often moreover partially supported by relatives or in other ways. In addition to this we must add the fact, that in many pur- suits the woman worker is apt to be less valuable than the man, because marriage takes her away from her work just when she has learnt it thoroughly, while marriage gives the man a stronger inducement to continue and improve. Seeing this, some women are far-sighted enough to urge that their services as mothers should be taken into account by the community, which could not continue to exist without such services. If, however, maternity is to be regarded as a public service, and rewarded as such, the community must, in its own interests, take care that it receives a due equivalent for its suggests that even the mutilation of domestic animals " could scarcely survive the critical ordeal of thought." But when we consider the numerous cases of semi-imbeciles wlio are found guilty of certain crimes, is not the question worth asking whether (at least, for any repetition of the offence) a surgical operation would not be a more benelicent and more socially useful penalty than a very long sentence of imprison- ment ? 134 THE RIGHT OF LIFE [ch. vi expenditure, AVhen tlie compulsory military service, wliicla is normal in many countries, and may be required in all, is urged as an argument for the political privileges of men in distinction from women, the advocates of " women's rights " ask, with considerable relevancy, " Where would your soldiers be without mothers '? " The defect in this retort is that it over- looks the fact that the State does not support any and every male as a soldier ; a certain minimum of fitness is required. The State must similarly reject those would-be mothers who are physically or morally unfit. To burden the State with paupers and imbeciles is the reverse of a public service, and should certainly not be rewarded as such. CHAPTER YII THE EIGHT OF LIBERTY : LIBERTY OF THOUGHT Next to the right of life is generally named the right of " liberty," and to many persons this seems the primary and most essential right of all/ As many crimes have been done in the name of Liberty (and a still greater amount of nonsense talked in the name of Liberty), there are some who think they gain a point or two by substituting the Saxon term " Free- dom," Liberty, it is admitted, is something French, foolish and frivolous. Freedom is English, solid and sensible, if just a trifle dall. Any such distinction is mere playing with words ; it matters not whether we choose to take the Romance or the Teutonic term between which our conveniently compo- site language offers us the alternative. John Locke writes indifferently of " natural liberty " and of "freedom." I have shown sufficiently in Chapter I. that we cannot shuffle off upon French fanatics the sole responsibility of having pro- claimed, even in the most extreme forms, the natural rights of libert}'', etc. The same ambiguities lurk in the one term and in the other. Whether any one demands the liberty to do something, or asks to be left free to do something, he is making the same sort of claim ; and if he supposes that for liberty as .snchj or for freedom as such, there is any a priori ' In a work entitled The Natural Iii(j/d to Freedom, by Mr. M. D. O'Brien (recently published ; no date), I had hoped to find a reasoned statement of the Individualist theory. But, save for some frat^ments of Stoic moralising, I have found nothing except vituperation, misprints, and bad grammar. Of the vituperation I am one of the objects ; but in tlie distinguished, if somewhat oddly assorted, company of Professor Flint, Sir J. F. Stephen, M. Zola, and Walt Whitman. To Mr. O'Brien's vituperation of mj^self and my arguments I do not in tlie least object, but I do object to having put in my mouth, and in that of Tacitus, such an atrocious piece of individualist Latin as " Principis nwrtalis, repiiblicia CB^erna " (p. 8i). Mi-. O'Brien would seem to claim a natural right to freedom from the rules of grammar, as well as from the authority of civilised society. 135 136 THE RIGHT OF LIBERTY [ch. vii justification as against the claims of " restraint " an such^ or "interference" as stick, he has become a prey to the old fallacy which consists in taking relative terms as absolute. The modern reader of Plato's Eiithydemus is apt to dismiss the captious puzzles of the old Sophists with a superior smile, saying, " Such things belong to a very childish stage in human thought." When Euthydemus argues that my father, because he is a father, is also the father of all other men, and also of all gudgeons and puppies and pigs ; and when Diony- sodorus reverses the position, and argues that Ctesippus's dog, because a father, is the father of Ctesippus himself,^ the reasoning is so ridiculous, if one may say so, that it hardly raises a laugh. But a great many arguments based upon the appeal to " freedom " are arguments of the same kind, though the fallacy is more deeply hid, since " freedom " is not on the face of it a relative term in the same way that "father" is. If I call a person " more learned," the question at once suggests itself: "More learned than whom?" But when a person is called "learned," or "prudent," or "sane," or " honest," the question is not always asked : " By what standard ? " Yet that is a very important question to ask. A tall Esquimau would be a short Englishman ; and a learned pig would be ignorant for a Justice of the Peace, The relativity of the term "drunk" has frequently come before the notice of the law courts. The definition of drunk as " not capable of lying on the ground without holding on " would not satisfy a "total abstainer." Now the term "free" is more obviously relative than some of these terms. Not only, like all adjectives of quality, does " free " imply some standard by w'hich it can be measured — a free man, under the despotism of Nero or Domitian, would hardly be accounted free by those who looked back on the Republic — but the very word ought to suggest the incompleteness of the description, till we know from what a person is free, or what he possesses the liberty to do. The editor of Sir George Cornewall Lewis's excellent little book on the Use and Abuse of roJitkal Terms — Sir R. K. Wil- son^ — quotes from a speech, so far as he can remember, of Mr. ^ Euthyd., 298. ^ P. 151, note. I have not followed Sir R. K. Wilson's commentary on the phrases in every respect, though I am greatly indebted to it. CH. vii] THE RIGHT OF LIBERTY 137 Joseph Chamberlain, in which an "advanced" political pro- gramme was put forward under the phrases " free land, free labour, free religion, and free schools." If this coml)ination c;f words was not actually used by the orator to whom it is as- cribed, it is likely enough to have been used by somebody else in the days when the creed of " Advanced Liberals " was manu- factured at Birmingham. The adjective " free " in each of these cases is meant to commend the policy advocated to the minds of the party of " freedom." But what confusion of thought that Httle word, conceals ! By " free land. " is meant appar- ently any measures which would facilitate the legal transfer of land ; and among such measures one of the most effectual would be an interference with the " freedom " of bequest, and with the " liberty " of landowners to tie up real property. "Free labour" — well, what does that mean? In more recent years it would probably mean the putting of restraint upon trade-unions in their interference with the employment of non- union men.^ In earlier times, in many lands, it would have meant the abolition of slavery, or the removal of restrictions which hindered the migration of workmen from one district to another. Sir R. K. Wilson suggests that it may mean " the repeal of all laws for punishing manual labourers as criminals for mere breaches of contract," or " a shortening of the hours of labour by means of legal restrictions on the freedom of con- tract." I give up the problem of what it meant as originally used. " Free religion " might mean freedom from legal and political disabilities on the ground of religious opinion, and the legal right of every citizen to worship God in his own fashion : in the mouth of some ecclesiastics it would mean the liberty of one Church to restrain all other forms of religion, and its ex- emption from any responsibility to the civil courts, in all those matters in which it did not choose to be responsible. As used at Birmingham, however, the words would only mean the disestablishment and disendowment of State Churches, i.e. an extensive interference on the part of the State with the })ro- perty of various corporations (sole and aggregate), and the abolition of all legal provision of free, i.e. gratuitous, religious teaching and worship. "Free schools " means the institution of gratuitous teaching at the cost of the nation; so that the ' Cf. the phrase about every man's riglit to do wliat he likes wiili his labour, quoted p. 15 above. 138 THE RIGHT OF LIBERTY [ch. vii word '' free "' in these two last formulas lias exactly opposite meanings. It would be easy to multiply examples of the ambiguities of the words " liberty" and "freedom." " A free monarchy" to Bacon and to King James meant an absolute monarch}^, so that " a free monarchy " is incompatible with what we call " free government." The " liberties " of corporations, classes, or individuals, mean their special privileges, and thus involve considerable interference with the " liberty " of the non- privileged. " Freedom of contract " maj'- result in a practical bondage of one of the parties to the other. A " Free Church " may allow less " liberty of thought " than Churches which are not " liberated " from the State. ^ Where Bishop Burnet wrote, " The Earl of Arg^de was free of all scandalous vices," Dean Swift, in correction or malignit}^, wrote on the margin, " As a man is free of a corporation, he means." The last example suggests forcibly what is perhaps the most important of all the ditierences in the signification of the term " liberty " — the difference, namely, between negative iiwd positive liberty. Ne- gative liberty means simply " being let alone." Whether that is a good or a bad thing in itself is a perfectlj^ useless question to discuss. It is (to adapt an illustration of Sir James Stephen's) just like asking whether a hole is a good thing in itself.- All depends on what the hole is made z'??, and on what you want to put into the hole. A hole in my coat is useful, if it is a button- hole or the place my arm has to go through ; but a hole in the wrong place is not desirable. And so it is with liberty in the merely negative sense of non-interference. We must know who or what is being left alone, on what occasions, in what places, and who it is that is leaving any one alone, before we can profitably discuss the good or evil of freedom. To give a baby its freedom on the verge of a precipice and to attempt to supervise every act of grown men are both foolish and culp- able proceedings. When people praise liberty, it may simply be a way of expressing their strong detestation of some partic- ular form of restraint ; but more often, there is implied also in the praise the ideal of some positive ^^owers of doing something which they consider worth doing.^ Positive or real liberty, as ' Cf. below, p. 220. * Cf. Liberty, Equality, Fraternity (Ed. 2), p. 197. 3 Cf. T. H. Green, Works, III. p. 371. CH. viil THE RIGHT OF LIBERTY 139 we might call it, to distinguish it from the negative or merely formal liberty of being let alone, means the opportnnitj'' or capacity of doing something. Such liberty is, in its turn, good or bad according as the things which can be done are good or bad. That there is a natural right to liberty might be understood to mean (in accordance with the sense of " natural " explained above, p. 75) that every well-regulated society ought to secure to all its members, so far as possible, the opportunity^ of developing their various natural [i.e. inherited) gifts and powers so far as they can without detriment to one another or to the well-being of the society as a whole. But this positive and qualified meaning of liberty has not always been recognised as clearly distinguished from the mere negative sense of being let alone ; nor is it always realised how verj^ much any real positive liberty depends upon the existence of elaborate social arrangements, and on a strong and stable government. In this country no one is hindered by law from reading all the works of Mr. Herbert Spencer. That is negative liberty. But if a man cannot read at all, or if he can read but has not any money to spare for the purpose of buying so many volumes, or if he has no access to any public library, or if the managers of any library to which he has access refuse to permit such works on their shelves, or if, having access to them, he has no leisure in which to read them, or if he has not had such an education as enables him to understand what he reads, he cannot be said to get much good out of the fact that the law of the land does not prohibit him from reading Mr. Spencer's works. Thus, in order that the great mass of the inhabitants of this countr3'' should really enjoy the privilege of appreciating the philosophi- cal basis on which Mr, Spencer founds his objections to State education. State libraries, and all such forms of interference with individual liberty, it is necessary that such forms of State interference with individual liberty — and a good man}' others — should be in active operation ; at least experience has not yet shown us any instance in which opportunities of culture have been accessible to all, or nearly all, the inhabi- tants of densely populated countries without some such inter- ference with the liberty of being ignorant, the liberty of keeping children ignorant, the liberty of working for excessive hours, and other individual liberties of that kind. Thus, liberty in the sense of positive opportunity for self- I40 THE RIGHT OF LIBERTY [ch. vii development, is the creation of law, and not sometliing that could exist apart from the action of the State. It is, indeed, conceivable that at least in small communities the pressure of public opinion alone might suffice to keep up a strong sense of parental responsibility in the matter of education, and a stan- dard of living which would ensure among other things a fair amount of leisure. But, where any approximation to such con- ditions has existed, it will be found that a Church not tolerating nonconformity has practically exercised effective compulsory powers, backed by sanctions such as excommunication, for which an equivalent can only be found in State-enforced penal- ties when the Church ceases to be identical with the civil com- munity, and when citizens may belong to other religious bodies, or to none at all. Even in such cases of ecclesiastical, or, one might say, theocratic compulsion, the sword of the civil magis- trate has generally been at the service of the Church. Scot- land and the New England colonies in the seventeenth and early part of the eighteenth centuries might be cited as ex- amples of countries where illiteracy was exceptional before Compulsory Education Acts — in the modern sense — had been passed ; but a powerful Puritan clergy enforced reading-lessons on their flocks with the same stringency they would have used to prohibit the teaching of such doctrines as those of Mr. Spencer. The only alternative to the penalties enforced by the law courts are the often more terrible penalties of religious excommunication enforced by an exclusive and necessarily in- tolerant Church, or of a " bo3^cott" enforced by some irrespon- sible association, too much believed in or too much feared to be lightly disobeyed. Most persons who care for liberty — in the sense in which alone it is worth caring for, i.e. opportunities of self-development — will prefer the compulsion enforced by a State in which the whole community is in some way repre- sented, and which is strong enough to secure toleration for those who dissent from the prevailing religion or who dread the arbitrary edicts of private associations or secret societies. The American Declarations of Rights have contented them- selves with claiming the natural right to liberty, but with more prudence than respect for logic have abstained from giving any definition of the term : • the attempt might possibly * Here is a charming specimen of the casuistry to which the doctrine of a natural right of liberty may lead. In a case arising out of the South CH. VI i] THE RIGHT OF LIBERTY 141 have led to some awkward and premature differences between the northern and the southern States. The French Declaration of 1789 (prefixed to the Constitution of 179J ) seriously grapples with the difficulty. " Liberty," according to its fourth article, " consists in the power to do everything that does not injure another ; thus the exercise of the natural rights of every man has no limits except those which assure to the other members of the society the enjoyment of these same rights." The cor- responding article in the Declaration of 1793 has its first clause almost identical with the words used in the Declaration of 1789: "Liberty is the power w^hich belongs to man of doing everything that does not injure the rights of another." AVhat follows is a somewhat rhetorical flourish : " Nature is its prin- ciple, justice its rule, the law its safeguard : its moral limit is to be found in the maxim. Do not do to another loliat thoti icouldest not have done to thyself ^^ — the negative side of an ancient and venerable moral precept. Mr. Herbert Spencer enunciates the " formula of justice " in very similar terms : "Everyman is free to do that which he wills, provided he infringes not the equal freedom of any other man " {Justice^ p. 46). Mr. Spencer tells us that " for more than thirty years " he supposed that he was " the first to recognise the law of equal freedom as being that in which justice, as variously ex- emplified in the concrete, is summed up in the abstract." At length he has learned that Kant had said something similar. In a translation of Kant's Fhilosophi/ of Law, he finds these Carolina liquor law, which prohibits the sale of alcoholic drinks except in State dispensaries, Judge J. H. Hudson, "the ablest of South Carolina's eight judges " (I quote from the Boston Transcriiit of July 11, 1893), laid down that the law was unconstitutional, because it deprived the people of the right to pursue a lucrative branch of trade, and gave the State a monopoly therein ; but that it would be lawful to j^rohibit the sale of in- toxicating liquors altogether. Thus, apparently, the individual has a natural right to sell drink, but no natural right to get it! It is only in a very commercial community that the right of selling could seem more primary and fundamental than the riglit of using the ai'ticle sold; but to regard it as more " natural " is stranger still. As the South Carolina liquor law has been enforced, i.e. has caused riots quite recently, I fancy that Judge J. H. Hudson's decision must have been overruled, on equally plausible grounds doubtless. Since writing the foregoing note I see that the Suj^reme Court of South Carolina has decided that the liquor law is vmconstitutional, whether on Judge Hudson's grounds or not I do not know. 142 THE RIGHl OF LIBERTY [ch. vii words : " The universal Law of Right may be expressed thus : ' Act externally in such a manner that the free exercise of thy will may be able to co-exist with the freedom of all others, according to a universal Law.' " ^ (See Mr. Spencer's Juatice^ pp. 263, ''liyi.) Kant's BechtsleJwe, it may be observed, was first published in 17'J7 (or, rather, in the latter part of 1796). Mr. Spencer apparently has not yet heard of the still earlier anti- cipation of his own formula in the French Declarations, nor of the deduction from a more ancient maxim introduced in one of them. " The Golden Rule," of course, in its j^os It ive form is a maxim of Benevolence rather than a maxim of Justice, and it is only the negative side of it which has any proper place in a formula of Justice to be used as a principle of legislation. All these formulas of Justice or definitions of liberty, it should be noted, bring in the conception of equality as well as that of liberty. As I have already pointed out, we cannot keep the several alleged natural rights apart from one an- other. At first sight, Mr. Spencer's phraseology may seem the simplest and the most distinct. Liberty is taken to mean " doing what one wills " ; but the right of doing what one wills is limited by the equal freedom of everybody else. The formula obviously implies a manner of thinking about human action analogous to that which underlies a very common ver- sion of the Social Contract theory. Every individual human being (I assume that Mr. Spencer means " man " to be con- strued as of common gender) is thought of as having in himself a right to do anything he likes ; but as every one has the same right, the various absolute rights conflict and make a war of all against all, except for the Social Contract which sets limits to the rights of each. The Social Contract theory may how- ever be used, as it is by Hobbes, to solve the difficulty about rights, by denying what are commonly called natural rights (though not what Hobbes himself would call rights according to the law of nature) altogether ; it may be used, as it is used by Locke, to modify somewhat seriously some of the alleged natural rights. According to Mr. Spencer's view of Justice, this principle of equal liberty is an absolute principle which no convention or law can rightly abolish or destroy, and which can always be appealed to for the criticism of positive institu- ^ Hastie's Kant's Fhilosophy of Law, i). AG; Kant, Werke (ed. Eosen- kranz), IX. p. 33. CH. vii] THE RIGHT OF LIBERTY 143 tions. We must think of the formula as a principle underlying any possible social contract, and not as resulting from it. Now let us see what it means, and what help we can get from it, in settling practical difficulties. People will generally ad- mit that they wish to do what is just ; but wliat is just in any particular case is often the very thing in dispute. And it would indeed be a great help if we had a formula applicable to all cases. At the first glance this formula of justice seems to offer me a most charming license. I may do anything whatever that I like — except — " Ay, there's the rub." I must leave " equal freedom" to everybody else. Now, what is equal freedom? Have I no right to stand up and speak at a meeting unless everybody else may also stand up and speak at the same time? If others are prevented, they are certainly deprived of their equal freedom ; if they are not, it would be rather awkward to be the chairman of that meeting — if, indeed, the formula of justice allows any one to be chairman without everybody being chairman. This last illustration will suggest the obvious and reasonable solution. AVhy is any one allowed to stand up and speak at a meeting at all ? AVhy is any one allowed to sit in the chair and regulate the proceedings ? Is it in virtue of any a priori principle of natural justice or equal freedom, and not simply and solely because the persons attending the meeting find it convenient to make or to follow certain con- ventions as to the conduct of business ? Anybody's " right " to do or say anything is derived entirely from the consent of the society of persons forming the meeting ; there is no such right in any one prior to, and independent of, the society in question. A public meeting is indeed a very temporary type of society ; and if it were not for the traditions and conven- tions inherited by one meeting from others, or from the pro- cedure of assemblies of a more permanent kind, public meet- ings would always be more chaotic than they sometimes are. It may be objected that I am quibbling with Mr. Spencer's formula ; and that by equal freedom is meant, not necessarily the right to do exactly the same thing at the same moment in the same place, but only the right to do similar things at the same moment in the same place, or to do the same thing at different times and in different places. My right to stand up and speak at a meeting depends on the right 144 THE RIGHT OF LIBERTY [cH. vii of other people to stand up and speak after me, and on other people's rights to hold other meetings at different places, and so on. But suppose I am speaking at the most advantageous time and in the most convenient place, the other people who only get the right of speaking at the inferior times and places are deprived of their equal freedom. And, even among the persons present at one meet- ing, can it be said that no one has a right to speak at all, unless every one has a right to speak afterwards ? Meetings would be more terrible ordeals even than they are now, if there was a natural and indefeasible right in everybody to bore everybody else. Whether anybody is allowed to speak at all, how long he may speak, and how many people may speak — all depend ultimately on the willingness of the audience to hear them. But, it will be said, can you not appeal to the sense of justice in a meeting in order to get a hearing ? Undoubtedly. But why ? It is because the persons are ac- customed to certain modes of conducting meetings which have gradually grown up under the shelter of firm government and stable social order. These modes may vary, and one or another be adopted according to the particular purpose for which the meeting is held. People may have come together simply to listen to a lecture : nobody but the chairman intro- ducing the lecturer, the lecturer himself, and perhaps some persons moving and seconding votes of thanks, may claim the right to be heard at all. Or, again, questions may be invited by the chairman, but any person taking advantage of the right thus bestowed upon him may be strictly limited to the asking of questions, and checked if he begins to wander off into a little oration of his own. Or, again, the meeting may be one in which " free discussion " is invited, but all persons except the speaker or speakers who have opened the debate may be restricted to ten. or to five minutes. In none of these cases — all familiar enough — is there any absolute principle of " equal freedom." There are, however, meetings — most notably, the usual type of legislative assembly — in which every one of a certain determinate number of persons con- stituting the assembly is presumed by the constitution of the assembly to have an equal right to speak, just as he may have an equal right to vote. But I do not think there exists any assembly of this kind anywhere, or that any such assembly CH. vii] THE RIGHT OF LIBERTY 145 would be likely to exist long, in which an absolute and in- defeasible right is conceded to every member, however fatuous and however dull, to speak as frequently and as long as the most eloquent, the most trusted, and the wisest statesman present. Some venerable legislative bodies do occasionall}'' seem to be approximating to such a condition ; but it is generally regarded as a bad sign when an assembl}^, pro- fessedly met together for the transaction of business, comes to waste its time in a weak concession to the natural rights of bores and buffoons. As a rule, the right of speech is dependent on the goodwill of the audience ; and, though there maj'' be a general willingness to give every one a hearing, that willing- ness is usually and wisely limited by the conviction that, unless a person has something to say that is worth listening to, the less he is heard the better. Any assertion of an absolute claim to equal freedom of speech would probably be met by disapprobation and clamour ; and a continued as- sertion of it would certainly lead to a general chaos and con- fusion — the claim of " equality " destroying the " freedom " of all by destroying the order that alone makes freedom possible. To the connection between the idea of justice and the idea of equality I shall have to return. Meanwhile, I think this discussion of what is practically meant by the right of free speech in meetings for special purposes illustrates sufficiently well the source of such rights generally. The right of making a speech is the creation of a society, and is limited by the goodwill of the society as a whole, and, as a rule, is both pro- tected and restricted by the authoritative decisions of some one presiding person, to whom the society hands over its powers in this matter for the time being, and who is aided and supported by the accumulated traditions of the past. The principle of justice should be a principle that holds a society together ; but any absolute claim of equal freedom on the part of every individual could only mean the break up of the society, and cannot therefore be the principle of justice. The French Declarations, however, do not leave the de- finition of liberty open to any such anarchical interpretation. The Declaration of 1789 makes the limit of individual liberty depend upon the question whether any injury is done to other persons or not; the Declaration of 1793 approaches more nearly in appearance to the anarchical principle of Mr. Spencer's N. R. L 146 THE RIGHT OF LIBERTY [ch. vn formula, since it substitutes for " injury to others," " injur^^ to the rights of others." But injury to the rights of others is in any case something very different from interference with the equal freedom of others ; for among these rights are in- cluded in the Declaration of 1793 the right of security and the right of property. Without referring now to the difficult ques- tions which are raised by an assertion of a natural right of pro- perty, it is enough to point out that the recognition of a right of security alone is incompatible with any absolute assertion of a right to equal freedom under all circumstances. It implies, however vaguely, the right to have order maintained by a government of some sort. And the article on liberty in the Declaration of 1793 goes on to say that "the law is the safe- guard of liberty " — an expression much more ambiguous, indeed, than the clear language of the Declaration of 1789, which expressly la3^s down that the limits of liberty " can only be determined by the law." Now, if this is once recog- nised, it follows that the right of equal freedom, or the right of any freedom, whether equal or not, is not prior to positive law but dependent upon it. The French Declaration is a protest against arbitrary government ; but it is a protest in favour of the determination of rights by fixed and known laws. It is conceived quite in the spirit of John Locke, who, in spite of all his phrases about natural rights, says that "Where there is no law there is no freedom." ^ It might be shown in other ways that the right of any individual to do what he wills must be limited by other con- siderations than the right of other individuals to do the same or similar acts. Most people now-a-days in this country would, I fancy, agree that a person has not a right to spread the infection, say, of scarlet fever or small-pox, provided only that he concedes to all others a similar right. The others might not consent to his liberty in return for his concession of equal liberty to them. We have come to consider certain things expedient in the interests of the general well-being, and certain things injurious. And we have come to consider it expedient to prohibit certain things simply because they are injurious, quite apart from considerations of equal freedom. We have indeed come to consider that restraints are in- expedient, unless they are imposed upon all persons similarly ' Treatise of Civil Government, II. § 57. CH. vii] THE RIGHT OF LIBERTY 147 situated, so tliat in a certain sense we recognise a principle of equal restraint ; i.e. we hold that the law should be impartial. The reasons for this principle of equality I shall have to dis- cuss later. Meanwhile, let me point out one obvious reason for it. A law is more likely to be accepted under a democratic constitution, and is more likely to be obeyed and to be enforced if it seems to apply to all equally. But to recognise the need of satisfying the demand for equality to some extent is a very different thing from making equal freedom our guiding principle. A few strong, well-armed men might be quite willing that every one should have an equal right to kill and plunder; but this willingness of the brigand to adopt the formula of Mr. Herbert Spencer would not (in the judgment of most persons) justify a settled modern society in going back to " the good old rule . . . the simple j^lan, That they should take who liave the power, And they should keep who can."' The principle of equal freedom, if taken as the ultimate basis on which the fabric of law and government is to be built up, would either compel a complete abstinence from all action on the part of every individual — that would be one way of every one having an equal right to do everything, — or it would mean the equal right of every one to do everything in the sense of Hobbes, i.e. the war of all against all. The intermediate mean- ings, which seem to make the principle of equal freedom a plausible account of what justice is, all presuppose an orderly fabric of society in which the rights of individuals are settled for them by a fixed system of law. In the blank spaces left unfilled by definite law or established custom, people do act on a rough general principle of give and take. Liberty in general is too ambiguous a term to permit us to decide how far the right to liberty is a right which ought to be recognised by a well-regulated society. The principle that the liberty of every one should be limited only by the equal liberty of every one else has been shown to be incapable of any literal application as a fundamental principle of society ; on the contrary, it is a principle which is either absurd or ' Wordsworth, lloh lloy's Grave. According to the jioet, "in the principles of things, He sought liis moral creed." 148 THE RIGHT OF LIBERTY [ch. vii anarchical, or both. I proceed now to examine some particular kinds of liberty which have been claimed as natural rights. In the life of man we very commonly distinguish three main forms in which his natural powers can be exercised — thought, speech, action. Action is a very wide term, and clearly re- quires subdivision ; but we may take these three main forms as distinguishing three spheres in which freedom may be claimed. Freedom of thought in one sense, which may fairly be regarded as the strictest sense of the words, every one has, and nobody can restrict. The Holy Office may forbid a man to utter any doctrine of which it does not approve, but no power that priest or tyrant has ever wielded can limit the freedom of a man's inmost soul. And, under oppression and amid bigotry, the closed lips of the intellectual rebel have often smiled bitterly but proudly, conscious of a freedom which even stone walls and iron bars cannot limit or confine. But to think what may not be uttered becomes a torture which eats away the soul. And the intellect which is shut up in its own dark chamber tends to pine away and perish, missing alike the fresh air of controversy and the sunshine of human sympathy. Indirectly, if not directly, even this sad privilege of freedom of thought is destroyed by S3'stematic repression of freedom of utterance. And in any sense of the words which goes beyond the merely negative one — that what goes on in one's mind cannot be directly ^ controlled by others — freedom of thought cannot exist except in a stimulating intellectual atmosphere. For freedom of thought, in the positive sense of the development of intellectual capacity and the earnest pursuit of truth, implies the existence of a good system of education, of a high average of intellectual culture in at least some class of the community, and of the possibility of a satis- factory career for those who devote themselves specially to intellectual pursuits. The mere absence of laws interfering with intellectual liberty will not of itself lead to the growth of a genuinely scientific spirit in regard to matters of belief. The public ^ A person hypnotised may be said to have his thoughts controlled by another ; but the control is not exercised directly by mind over mind, but through the medium of suggestion. Further, a hypnotised person is not a specimen of a person " thinking," in the only sense of that term we are here concerned with. CH. vii] THE RIGHT OF LIBERTY 149 opinion of a society of uneducated or sliglitl}^ educated persons, who are more or less under the sway of the same beliefs in religious, political, or social matters, may be far more adverse to the growth of any true positive intellectual liberty than even the existence of considerable legal restrictions on the free expression of opinion in popular discourses, provided that a certain degree of license is permitted, or winked at, in the case of those who address a limited audience of the learned. In a democratically governed society there may, owing to the strong pressure of popular prejudice, be less intellectual liberty, negative or positive, than under certain kinds of aristocratic and even of despotic governments. In the latter cases freedom of thought may be the privilege only of the few, and it may be a privilege dependent on the somewhat un- certain caprice of those in power ; but in the former case it may be practically non-existent. A strong government, even of a despotic or arbitrary kind, is often necessary in order to secure the person who holds some unpopular opinion against the hatred of the bigoted multitude. Under the early Roman Empire, Greek sceptics and Christian believers enjoyed an amount of security and liberty which no champions of new and unpopular opinions could possibly have enjo3"ed in a small Swiss democracy or in Puritan Massachusetts, so long as such communities remained homogeneous in their religious belief. Freedom of thought is thus not necessarily connected with the existence of what is called "free government." In spite of what is sometimes alleged, religious and political liberty do not always go together. The struggle for civil liberty, i.e. for self-government, for institutions that are to some extent at least democratic, still more the struggle for national liberty, i.e. independence of alien rule, may even be directl}^ hostile to religious liberty — as we understand it. The necessity of homo- geneity, as we shall see, may compel or seem to compel a degree of intolerance which is not necessary under a strong despotism. In the long run, however, religious liberty is placed on surer foundations if it is based upon a principle deliberately adopted b}'^ a free people than if it rests solely on the caprice, or care- lessness, or individual tolerance of a despot. On the other hand, if libertj'' of thought is once granted, it is not likely to be limited to religious questions : freedom of opinion respecting the other world will lead to freedom of opinion respecting this. I50 THE RIGHT OF LIBERTY [ch. vii And on this account the liberty of thought and speech is, as Milton saw, the very foundation of all other liberties. A democracy of uniform religious belief may stagnate throiigh centuries ; an absolute monarchy which tolerates independence of thought will prepare the way for something else than absolute monarchy, though the transition may be violent. "When people speak of freedom of thought, they generally mean, not the mere freedom of thinking for yourself, but the '' right to the free expression of opinion," ^ the freedom of speech and the freedom of writing and circulating opinions. The French Declaration of 1789 asserts that " the free com- munication of thoughts and opinions is one of the most precious rights of man. Every citizen therefore may speak, write, and print freely, save that he must answer for the abuse of this liberty in the cases determined by the law." In the first section of the Constitution of 1791 (to which, as already said, the Declaration of 1789 is prefixed) it is written: " The Consti- tution guarantees as natural and civil rights . . . liberty to every man to speak, write, print, and publish his thoughts, without his writings being submitted to any censorship or inspection before publication." The Declaration of 1793 asserts the right to free expression of opinion in less guarded terms : " The right of manifesting one's thought and one's opinions, whether by means of the press or in any other manner . . . cannot be interdicted." This ambiguous " cannot be," which provoked the wrath of Bentham," is clearly meant to mean "ought not to be." Thought cannot, as a matter of strict fact, be subjected to legal penalties : the manifestation of thought may be so subjected. The Consti- tution of 1793 " guarantees to all Frenchmen equality, libert}^ security, property, the national debt,^ the free exercise of religious worship, a system of public education, State relief {des secours ^^(6//c8), the unlimited freedom of the press (Ja liberfe indefinie de Ja pvesse)^ the right of petition, the right of meeting in popular societies [we might interpret this — the ^ Cf. Dicey, Law of the Constitution, Ed. 3, p. 224. ^ See his Anarchical Fallacies, in Works, Vol. II. pp. 499, etc. ^ Art. 122. "La dette publique." This means, I suppose, that the State will not repudiate its debts. It sounds a little odd to name the national debt among the privileges of citizenship ; though it does not need much reflection to see, that the financial honesty of a State is a thing in which its citizens are most deeply interested. CH. vii] THE RIGHT OF LIBERTY 151 right of association and of public meeting], tlie enjo3'ment of all the rights of man." The last clause makes a double guar- antee of all the preceding rights ; but (alas for promises !) the events which followed the promulgation of this Girondist Constitution are an unfortunate commentary on its unrestricted liberality. In the Declaration of Rights and Duties prefixed to the Constitution of 1705, the right of free expression of opinion is conspicuous by its absence. But it may be presumed that the authors of that Declaration thought the right suffi- ciently secured, though with the necessary restrictions, by the definition of liberty which is adapted from the original Decla- ration of 1789 : " Liberty consists in doing what does not injure the rights of another." To the body of the Constitution {Titve^w. § 353) is transferred the provision that "No one can^ be hindered from saying, writing, printing and publishing his thought. AVritings cannot [i.e. must not] be submitted to any censorship before their publication. No one can be made responsible for that which he has written or published, except in the cases contemplated by the law." The Constitution of 1795 thus returns, so far as intention goes, to the position taken up in the Constitution of 1791. Only the short-lived Consti- tution of 1793 ventures to proclaim an absolute and unqualified liberty of the press. The important feature of both the other Constitutions is their acceptance of the principle, which had been laid down in England by Lord Mansfield in these words : " The liberty of the press consists in printing without an}'' previous license, subject to the consequences of law," ^ — that is to say, I am free to publish what I choose, but if I libel any one, or if 1 infringe a copyright, I may have an action raised against me ; and if there are on the statute-book laws against treason, or against blasphemy, or against indecency, I may be made responsible before the courts for any offence against such laws. In calling attention to this resemblance between these two ' The "can" must be understood as meaning "shall by any law or execu- tive order," since there is apparently no intention of coercing publisliers and editors, who know various ways of hindering people from manifest- ing their thought — not always entirely to the puljlic detriment. Even the compositor can hinder a person froni jiuhli^hing his thought, by misreading the author's ''copy." * Quoted by Dicey, Law of the Constitution, Ed. 3, p. 232, from ll>-x V. Dean of St. Amph, 3 T. R. 431 (note). 152 THE RIGHT OF LIBERTY [ch. vii revolutionary Constitutions and the principle of the English law on the subject, I am not forgetting the difference, which Professor Dicey points out so lucidly,^ between the usual Con- tinental practice of dealing with press offences before special tribunals and the English tradition of recognising no special class of press offences. This difference is of great importance to an}^ one who is tracing the history of the liberty of the press in different countries. But I am here only concerned with the general principle, that the liberty of free expression of opinion, even when explicitly proclaimed in a Declaration of Rights, must, if we are to avoid anarchj^, be subject to some restric- tions. What these limits should be, and by what j)rocedure they should be enforced, are very important questions of practical legislation. But in the solution of them, is any help to be got from the principle of natural rights ? It would be a mere quibble to say that a preliminary censorship interferes with a natural right, while a subsequent prosecution does not. If there is a natural and indefeasible right inherent in every individual to express his opinions freely, it is equally wrong to punish him for having exercised that right, and to prevent him exercising it. If the right to express opinions freely is from the first regarded as necessarily checked and limited by the need of avoiding "injury to others," such checks, so far as the principle of natural rights goes, may seem to be better applied before any injury is done than after the mischief has actually taken place. Prevention is better than cure : and that is exactl}^ the principle on which such institutions as a literary censorship have been defended,^ It might even be argued that the individual has a natural right to be protected by government against the insults, indecencies, and profani- ties of reckless scribblers, just as he expects to be protected ' Law of the Constitution^ ch. vi. ^ Cf. the argument of Dr. Johnson in his Life of Milton : " It seems not more reasonable to leave the right of printing unrestrained, because writers may be afterwards censured, than it would be to sleep with doors unbolted, because by our laws we can hang a thief." Our laws do not, howerer, oblige the policeman to find out wfhere every man is going to, lest one or two should be thieves. Dr. Johnson was not likely to sympathise with WAion'a Areojmgitica', but he seldom goes as strongly against the current of his century, as when he says, "If every murmurer at government may diffuse discontent, there can be no peace; and if every sceptic in theology may teach his follies, there can be no religion." For peace and piety now-a-days we should have to go to Russia. CH. vii] THE RIGHT OF LIBERTY 153 against assaults upon his person. Both claims might be classed under the general claim of a natural right of security. If a distinction be drawn between injuries to the bod}' and injuries to the mind or character, it is drawn on grounds of ex- pediency and convenience. Injuries to the mind and character may be worse than injuries to the body, but the}^ are injuries respecting which the ordinary person has more difficulty in deciding. No government — except under revolutionary or ex- ceptional conditions — undertakes to arrest intending criminals : the habitual arrest of persons on suspicion becomes itself an evil as great as the occasional commission of crimes. An author's manuscript is more easily inspected than the intentions of a person of whom the police are suspicious ; so that a censor- ship cannot be put aside simply on the grounds of impossibility. On the other hand, a censor presumes to judge for a great mass of human beings and for the future. It is a great and difficult responsibility, "Who kills a man," says Milton, " kills a reason- able creature, God's image; but he who destroys a good^ book kills reason itself, kills the image of God, as it were in the eye," "It cannot be denied," he says farther on in his immortal Areojjagitica, " but that he who is made judge to sit upon the birth or death of books, whether they may be wafted into this world or not, had need to be a man above the common measure, both studious, learned, and judicious," If the censor, he argues, is such a person, how irksome a drudgery are we imposing on him ; if he is not, how badly will the work be done. The stupidity of censors, their venality, the wretched subterfuges to which they drive authors — such subterfuges as those prac- tised by Voltaire,^ and which help to make him so strange a mixture of the knight-errant and the monkey — such things are the best practical proof of the mischief of a censorship. And it is well worth noting that it was the practical incon- veniences of the licensing system which led to the abolition of a censorship of the press in England, The House of Commons discontinued (in 1695) the temporary Act which placed the press under the control of licensers, and induced the Lords to give way on the subject, not on any general grounds of a ' " A Genevese worshipper would sometimes take up in church a book lettered as, and looking like, the Psahns, only to find that it was a copj' of the one-volume edition of the Dlctionnalre Fhilosophiquey—E>ip[ns.sse, Life of Voltaire ["'Great Writers" Series], p. 151. 154 THE RIGHT OF LIBERTY [ch. vii natural right to free expression of opinion, nor even on the grounds urged by Milton of the injury done to truth by im- pediments put in the way of its pursuit, but " on account of the petty grievances, the exactions, the jobs, the commercial restrictions, the domiciliary visits which were incidental to " ^ the enforcement of the Licensing Act, " Such were the argu- ments," says Macaulay, "which did what Milton's ^reopa^i/ica had failed to do." The reasons given by the Commons for dis- senting with the Lords, when the latter proposed to continue the Licensing Act, were supplied, it seems, by John Locke.^ And it is specially to be noted that here Locke makes no use of the doctrine of natural rights. Locke proposes exactly the system now always accepted in this countr3^ " I know not," he says, " why a man should not have liberty to print whatever he would speak ; and to be answerable for the one, just as he is for the other, if he transgresses the law in either. But gagging a man, for fear he should talk heresy or sedition, has no other ground than such as will make gyves necessary, for fear a man should use violence if his hands were free, and must at last end in the imprisonment of all who, you will suspect, may be guilty of treason or misdemeanour. To prevent men being undiscovered for what they print, you may prohibit any book to be printed, j)ublished, or sold without the printer's or bookseller's name, under great penalties, whatever be in it. And then let the printer or bookseller whose name is to it be answerable for whatever is against law in it, as if he were the author, unless he can produce the person he had it from, which is all the restraint ought to be upon printing."^ Under this system, what we call the liberty of the press and the freedom of thought have gradually, though not in an untroubled course, progressed in this country. No such right as the liberty of the press has ever been recognised by the law. The " practical right " has come solely from the fact of re- sponsibility to the ordinary law only. The laws about sedition and about blasphemy might seem to make liberty of the press, as we understand it, impossible, even after the censorship was abolished. The uncertain security of the writer in the free expression of his thought has lain only in the institution of ' Macaulay, History of England, ch. xxi. 2 See Fox Bourne, Life of Locke, II. pp. 311-316. '' Lord King's Life of Locke (Bohn's edition), pp. 202-208. CH. vii] THE RIGHT OF LIBERTY 155 trial by jur}'. We have had no special tribunals for the trial of press offences. " Freedom of discussion," as Professor Dicey- puts it, " is in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written. Such ' liberty ' may vary at different times and seasons from unrestricted license to very severe restraint, and the experience of English history during the last two centuries shows that under the law of libel the amount of latitude conceded to the expression of opinion has, in fact, differed greatly according to the condition of popular sentiment." ^ The question is well worth raising : whether a security, which has proved effectual when the majority of the class from which jurymen are drawn had a general tendency to give a verdict against the government, is likely, when political and social conditions have changed, to prove a sufHcient security for what many would consider legiti- mate freedom of thought. An extended franchise and the re- moval of the disabilities of Dissenters have made the sentiment of the average juryman less sympathetic with some types of in- tellectual rebellion than he was in the days of Pitt. Suppose a still more extended suffrage and the Church disestablished, the average juryman would be relatively still more " conservative," and it is just conceivable that the free expression even of political opinion might not be so well safeguarded as we think, if an anti-revolutionary panic should overtake the country. Suppose, further, that the qualification of jurymen were lowered or abolished, it might still happen that in any community of very homogeneous belief in religious matters and of very settled social conditions, the author, whom we may regard as exer- cising only a reasonable liberty of expressing his opinions (whether we agree with his opinions or not), might find him- self punished for offending against the religious or political belief of the majority. Suppose Shelley to be tried before a jury of Welsh Calvinistic Methodists, or Mr. Herbert Spencer before a jury in a Collectivist community ; would either of them be sure of getting a fair trial ? The absence of homogeneity in religious beliefs, and the fact that so great a mass of the popu- lation wish the liberty of airing different grievances and of advocating different reforms, is a great security for the liberty even of the more daring intellectual rebel. ' Laic of the Constitution, Ed. 3, p. 231. 156 THE RIGHT OF LIBERTY [ch. vii A consideration of the degree of liberty or license allowed under our system of dealing with, the press calls attention forcibly to the dependence of such liberty on the prevailing mood of public sentiment. No formal declaration of the liberty of the press or of the freedom of opinion will of itself secure the habitual exercise of such " rights," unless public opinion continues to support the idea. But it may very well be ar- gued that the existence of such a formal declaration, even if it cannot, without risk of anarchy, be made constitutionally or legally binding, has a very important moral effect in restrain- ing the prejudices or the passions of the multitude. And that is really the chief use which such Declarations serve. CHAPTER VIII TOLERATION I HAVE been assuming that a very wide, though undefined, degree of toleration for diversity of opinion is a good thing. It may reasonably be urged that, if the theory of natural rights is rejected, such an assumption needs proof. In saying a little about " toleration," it will be most convenient to go beyond mere freedom of expressing opinion in speech and writing, and to take account also of that form of freedom of action which consists in the free exercise of religious worship and the carrying out of religious principles into outward con- duct. I have used the word " toleration " because it is the name under which the struggle for liberty in matters of belief has been generally fought out. In itself the word, on the whole, has the advantage, rare in terms of controversy, of being neutral. It does not ostentatiously claim to be a good thing ; there was, at least, no absurdity of language in the denuncia- tions of the wickedness of toleration, so common in the seven- teenth century. It is still intelligible, and not uncommon, to speak of the toleration of vice or of political corruption as being a bad thing. It is true that in its original use the word implied a certain set of opinions and beliefs and practices approved of by the Church or by the State, while certain other opinions or beliefs and practices, though not accepted nor indeed ap- proved of by the powers that be, might 3'et be " tolerated." In any case the word implies that the right is granted by the community to individuals. It is this suggestion in the term of a special favour or gracious condescension which provoked the indignation of Paine. " Toleration," he says, "is not the opposite of intolerance, but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it. The one is the pope armed with fire and faggot, the other is the pope selling or granting indulgences."^ Paine urges it as a special ' Itiijhts of Man, p. Bl (Ed. 18S3). 157 158 TOLERATION. [ch. viii merit of the Frencli Constitution that it "hath abolished or renounced Toleration and Intolerance also, and hath estab- lished Universal Right of Conscience." The Constitution to Avhich Paine is here referring is the Constitution of 1791, not that of 1793, in the framing of the original form of which he had himself some part. In the Declaration of Rights of 1789 (Constitution of 1791), as we have already seen, the limits of liberty are expressly said to be determinable only by the law, and not therefore by the conscience of any one and every one. The tenth article of the Declaration asserts that " No one ought to be molested on account of his opinions, even on matters of religion {'pour ses opinions^ meme rellgieuses)^ provided that bis ' manifestation ' ^ of them does not disturb the public order established by the law." In both articles the " law " is made the arbiter of liberty, so that the very idea which Paine objects to in the word "toleration" is introduced. The Declaration of 1793 omits these qualifications, and may therefore be taken as representing better Paine's own ideal. " The right of ex- pressing one's thought and one's opinions . . . and the free exercise of religious worship ((Ze.? cultes) cannot be pro- hibited." If such "rights" are supposed to be incapable of limitation, they will certainly come into conflict with the principle of not injuring the rights of others, especially as "security" and "property" are included among these rights. Suppose an individual were to declare that his conscience or an express revelation from Grod commanded him to offer up his son in sacrifice as a part of his religious duty (the son con- senting), Paine would have been more ready to denounce the detestable superstition than to guarantee the free exercise of this piece of religious worship, and he would not have shown much respect to any kind of government that did not endeavour strictly to prohibit any such "free exercise." The assertion of a " Universal Right of Conscience " in any absolute and indefeasible sense would oblige a government to take the word of every individual for his own sincerity in saying what his conscience ordained. If we refuse to allow the individual to judge in his own case (as every well-regulated society must in a great many instances refuse to do), we give up any absolute ' The word is manifestation. Paine's translation "avowal" is not quite enough. We might paraphrase " w&y of expressing them." The word "even" (historically interesting) must have jarred on Paine. CH. viii] TOLERATION 159 right of the individual conscience and fall back upon the authority of the legislature and the law-courts, which decide to " tolerate " certain kinds of acts and utterances within limits determined by the law, and not to tolerate other kinds of acts and utterances, i.e. to punish those who are convicted of them. We may very well rest content with the word " toleration," which correctly expresses the nature of the liberty allowed, and suggests the source of that liberty, and has, more- over, received a sufficiently honourable consecration from the use of it in the long struggle against ecclesiastical intolerance. This matter of toleration is very apt to be thought much simpler than it really is. We flatter ourselves that we no longer persecute people for their religious or other opinions, and we condemn the persecutions inflicted in past time by Church and State. We seem to have a difficulty in understand- ing how Christian people came to persecute ; for persecution is supposed to be inconsistent with the religion they professed, and inconsistent also with the true purposes of government, which seem to us necessarily to include the safeguarding of liberty of conscience. Now, in the first place, it must be pointed out that " persecution " is a question-begging term. It means " repres- sion," or " compulsion," of which the person using the term "per- secution " disapproves. Public opinion has undergone great changes as to the kind of actions which ought to be legally repressed, or may be legally repressed without attendant evils, that are too great to be risked. At all times people have been ready to tolerate certain kinds of acts and utterances, but have regarded it as a duty to suppress other kinds, if possible. The line between what might be tolerated and what might not has, however, been very differently drawn at different times, and the methods of repression adopted have also differed very greatly. Nowadays we blackball our heretics at a club, or we try to subject them to what is called (in journalistic ignor- ance of a Greek institution) " social ostracism," where our ancestors would have used for their heretics the coarser methods of the pillory and the stake. The "heresies" differ; the methods of punishment differ. The spirit which leads to l)ersecution remains, and it is a spirit which, in some forin, is necessary to the cohesion and existence of any snciet}'. A universal and absolute toleration of everything and everybody would lead to a general chaos as certainly as a universal and i6o TOLERATION [ch. viii absolute intolerance. We are all " dogmatists " on some ques- tions, while prepared to treat others as relatively matters of indifference on which we can tolerate diversity of opinion. We are all ready to " persecute," i.e. to use the force of govern- ment and the pressure of popular sentiment, in support of our dogmas where it is otherwise expedient and safe to do so, some- times even where it is not. We persecute "conscientious" persons in support of the " dogma" of vaccination; we " per- secute" the Peculiar People who quote Scripture to sanction their neglect of getting medical attendance for their dying children ; some people would like to " persecute " scientific men, who have by their experiments defied the " dogma " of anti-vivisection and violated the natural rights of frogs and — microbes. Those who hold the " dogma " of monogamy, still more those who hold the " dogma " of the equality of the sexes, persecute the polygamist, who is, at a humble distance, follow- ing the example of those saints of the Old Testament, whose lives have edified many generations of Christian people. The " persecution " of Mormonism in a land of professed " religious liberty " like the United States is an instructive comment on the notion that Declarations of natural rights will protect in- dividuals who do what is unpopular. To the onlooker it is even a little grotesque that in a society which permits such varied " experiments in living " as the easy-going divorce laws of some States allow, there should be so little toleration for an experiment in restoring a primitive and venerable type of the family ^ — the only form of it which, in old countries with an excessive female population, could give a fair chance of becom- ing "a wife and mother" to every woman; and, according to the view many persons profess to hold about the " natural sphere " of woman, such a fair chance might be reasonably considered every woman's "natural right." Of course the objection is ready to hand, that I am here con- fusing the repression of acts which are obviously injurious to society with persecution because of belief in theological doc- trines, that I am confusing martyrs for religious faith with criminal and vicious persons. " Criminals," it may be as well ' Cf. J. G. Schurman, The Ethical Import of Darivinism,^. 263. "Blind to the havoc which divorce is making in the old family system, we atone for our manners by embodying the principles of our fathers in denuncia- tion of the Mormons." See note B at end of this chapter. CH. viii] TOLERATION i6i to point out, means simply — those who have done actions which the law of the land classes as " crimes." If the law of the land makes heres}^ of any particular form a "crime," the here- tic is a criminal. Put yourself for a moment in the place of the persecutor of old days, and you will see that he looked at religious persecution (as ice call it) exactly in the same manner in which you look upon the repression of polygamy, or of vivi- section, or of indecent literature, or of the liquor traffic, or whatever may happen to be 3'our special aversion among what you regard as the evils of the time. Opinion has changed as to the things which ought to be forcibly repressed, as to the things which can safely be repressed, and as to the methods of repression which it is right or expedient to use. AVe are all (except Count Tolstoi and a few benevolent anarchists) agreed that some kinds of conduct ought to be repressed by force, if it is possible and safe to do so : we differ as to what kinds of conduct these are. It cannot even be said that we have limited ourselves to the repression of acU of which we disapprove, and that we leave people to express their opinions quite freely in speech or writing, however much we disapprove of these opinions and however mischievous we think them : a speech which contains incitement to murder or violence is punishable by law, and certain kinds of literature are liable to suppression on the grounds of indecency, even where the conduct to which they may be supposed to incite is not made " criminal " by the law of the land, though condemned as "vicious" by prevalent popular opinion. That is to say, lijnits are in all civilised countries, however "tolerant," imposed on the liberty of speech and writing as well as on the liberty of action. We consider that to circulate false coins is rightly made a crime and punished very severelj^ by the law of the land. 8t. Thomas Aquinas considers that heretics are much more mis- chievous persons than the utterers of false coins. " For it is a much heavier offence to corrupt the faith, whereby the life of the soul is sustained, than to tamper with the coinage, which is an aid to temporal life. Hence if coiners or other malefac- tors are at once handed over by secular princes to a just death, much more may heretics, immediately they are convicted of heresy, be not only excommunicated, but also justly done to die." But although such immediate capital punishment of heretics is just, the Church is merciful. " On the part of the N. u. M 1 62 TOLERATION [ch. viii Church is mercy in view of the conversion of them that err ; and therefore she does not condemn at once, but ' after the first and second admonition,' as the Apostle teaches {Titus iii. 10) : After that, however, if the man is still found pertinacious, the Church, having no hope of his conversion, provides for the safety of others, cutting him off from the Church by the sen- tence of excommunication ; and further, she leaves him to the secular tribunal to be exterminated from the world by death." ^ It is worth observing that St, Thomas Aquinas here assigns as the reason for the punishment of the heretic, not simply a desire to vindicate the honour of God, a desire which we might say modern legislation had found it right or expedient to leave unsatisfied, but " the safety of others." There should really be nothing startling in this passage of Aquinas : it is difficult to see how a theologian, sincerely believing that the Church is in possession of absolutely cer- tain knowledge (so far as God has been pleased to reveal it) respecting the destiny of the human soul and the principles of right and wrong, can hold any different view about the treatment of heretics, where the Church has sufficient power to keep itself free from the taint of corruption. He may, in- deed, hold that burning was too cruel a punishment, though the blame for that rests with the temporal powers, the Church handing over heretics with the merciful request that they were to be put to death " without the shedding of blood"! he may hold that imprisonment or even exclusion from the privileges of citizenship would be a sufficient penalty and bring less discredit on the Church from its unsympathetic enemies. But he cannot consistently admit the claims of the Roman Catholic Church to universal dominion over the souls of men and to the possession of absolute truth, and yet hold that the heretic ought to be left quite free, and should even be defended by the arm of the law, in propagating his soul- destroying opinions. The modern Roman Catholic theologian may admit that manners have become milder, even among ' '2a 286, qu. 11, art. 3. I quote from Father Rickaby's translation, which puts quotation marks before the words " After that, etc.," but has no indication of where the quotation ends. They ought to come at latest at the word " excommunication." The passage in Titus cannot possibly be stretched to mean more than that. As I understand St. Thomas, the words " ut Apostolus docet " are meant to apply directly to the immedi- atel}- preceding phrase alone. I CH. viii] TOLERATION 163 theologians, and that the Church's claws are cut and her jaws muzzled : he cannot admit that she ought never under favourable conditions to use her teeth or to get the civil power to scratch and bite for her. Let me quote Father Rickaby's commentary on the passage just cited from the Angelic Doc- tor : — ''Are heretics to he tolerated f A question to ask in the nineteenth century ! The changes of the last six hundred years may be reduced to three heads. 1. The formation of heretical bodies of long standing, the individual members of which, never having professed the Catholic faith, and bein>^ ignorant of it, and from infancy prejudiced against it, cannot without distinction be called heretics. ^ 2. The fallen estate of the Church as a political power.^ 1 This is a point very often ignored by, or unknown to, the Protestant controversialist who is stirring up intolerance against Roman Catholics. ^ I assume that Father Eickaby in these words is referring generally to the diminished inflvience of the Church in j^olitical affairs : but his words would include a reference to the loss of the temporal pow-er in a portion of Italy. On this matter of the temporal power I think it worth while to quote a passage from the Catholic Dictionary of Addis and Arnold. (I purposely take my quotations from representatives of a very tolerant and very enlightened Catholicism. Mr. Addis is no longer a Catholic.) The passage may serve as a further illustration of the way in which earnest modern Catholics feel obliged to look at the subject of toleration. In the article on the " States of the Church " we are told that "Protestants themselves, or the more reasonable and enlightened among them, view w^ith grief and scorn the process by which Rome is being reduced to the level of an English or American town. They would prefer that at least one place should be left on earth where Catholic principles of government and maxims of life might be applied without disturbance. They would wish to see the Sacred Congregations again discharging their critical and judicial functions. It might be said tliat the discipline so set up must be inelifectual ; a Roman could obtain the works of Renan or Paul de Kock at Florence, if the sale were forbidden at Rome; he could turn Methodist and rant in public at Naples, if this luxury were denied to him at home. But what then ? Is it nothing that an example of right practice should be given, towards which European society, dislocated as it now is, might gradually tend?" The tourist in search of the picturesque, who complains that Rome (which never was a t3'pical mediaeval city) is losing some of its mediaeval quaintness, is dragged in as a witness on behalf of the claim of the Pope to " mismanage the drains of a third-rate European city." He, or she, would like to have a good specimen of a kind of spectacle that has become obsolete. It w-ould be so interesting to see the Sacred Congregations at work: to see a Giordano Bruno, for instance, being roasted. But per- haps another class of tourist might think it equally interesting to see the spectacle of an older Rome, to witness a gladiatorial contest in the 1 64 TOLERATION [ch. viii 3. The irritation set up in modern minds at the sight of men punished for opinions, whether political or religious : a fact that the Church would have to reckon with, even if she had might on her side, and consider whether it would be prudent in her nowadays to visit heresy with all the ancient penalties. For the Church's punishments are medicinal ; ' and the same medicine does not suit every age and constitution of society. The Church, however, still insists on her right to punish by corporal intlictions. Pius IX, condemned this proposition (Syllabus, 24) : ' The Church has no authority to use force.' " In his manual of Moral Philosophy Father Rickaby discusses the right of the State to control the expression of opinion. At the end of his section on " Liberty of Opinion," he says : " Penalties for the expression of opinion are available only so far as they tally with the common feeling of the country. When public opinion ceases to bear them out, it is better not to enforce them : for that were but to provoke resentment and make martyrs " — a most valuable lesson from the experience of history. No regulation can be maintained except in a congenial atmosphere. " Allowance, too, must be made for the danger of driving the evil to burrow underground " (p. 370)— a most important matter to be considered in all schemes for en- forcing a uniform type of opinion or conduct. As to the duty of the State to prevent the spread of what he considers per- nicious opinions. Father Rickaby has- not the least doubt "where the atmosphere is congenial," i.e. where the State can carry on an effective persecution of heresy. " Silencing dis- cussion," he says, " is an assumption, not of infallibility, but of certainty " (p. 366); so that, even on matters where infallibility is not claimed, the State may silence discussion. A great and, on the whole, reasonable distinction is drawn between " free discussion among competent persons " and " free discussion among the incompetent and incapable." ^ Coliseum, or to see the Christians as living torches lighting up Nero's gardens. The tourist in search of strange and vivid sensations, who looks on the whole of Italy as if it were a spectacular exhibition in an American circus got up for his amusement, might even find the more ancient spec- tacle the more attractive and exciting performance of the two. As to " reasonable and enlightened " persons, Protestant or not, a little know- ledge of how the Popes used to govern, and a little imagination as to how "the example of right practice" would w^ork out if gradually fol- lowed by all European countries, would probably be sufficient to deter them from doing anything to revive the experiment of putting the sword of the civil magistrate into the hands of the priest. 1 Very nasty physic sometimes. ^ This distinction was made by Laud in England. He was tolerant CH. vm] TOLERATION 165 In answer to the objection " that it is immoral to interfere with conscience and to attempt to stifle sincere convictions," Father Rickaby writes : " The State has nothing to do with convictions as such, nor with the inward convictions of anj'' man. But if the State is sincerely convinced that the convic- tions openl}^ professed and propagated by some of its subjects are subversive of social order and public morality, whose sin- cere conviction is it that must carry the day in practice ? It is of the essence of government that the convictions, sincere or otherwise, of the governed shall on certain practical issues be waived in the external observance in favour of the convictions of the ruling power. After all, this talk of conscience and sincere convictions is but the canting phrase of the day, ac- cording to which conscience means mere wild humour and headstrong self-will.^ Such teachings as those which we would have the State to suppress, e.g. An oath is a folly ; ~ There is no law of purity ; There is no harm in doing anything that does not annoy your neighbour : are not the teachings of men sin- cerely convinced : they deserve no respect, consideration or tenderness on that score. , . , When a man proclaims some blatant and atrocious error in a matter bearing directly upon public morals — and it is for the restraint of these errors alone that we are arguing^ — there is a decided jjrcesumptlo juris, that the error in him, however doggedly he maintains it, is not a sincere, candid, and innocently formed conviction." " Sincere conviction " is to be respected ; but we are the judges of who is sincere, and we decide that every one who maintains any opinion about public morals which is contrary to what we believe (since it has been revealed to us by the Law of God or the Law of Nature) is insincere, and therefore is not to be respected ! I think it a pity that Father Rickaby did not of learned discussion in big folios, but not of theological arguments and political conclusions in sermons before the ordinarj'- laity. Cf. Gardiner, History of Englnnd, 1603-1642, Vol. VII. p. 124. Pitt is said to have given as his reason for not prosecuting Godwin for his Political Justice that "a three-guinea book could never do much harm among those who had not three shillings to spare" — toleration for high-priced heresy only. ' How precisely all this expresses what the average Roman magistrate must have felt in dealing with obstinate Christians, who refused to offi'r incense to the Emperor's statue. ^ What about the teaching that an oath is a sin, because forbidden by Jesus Christ ? ^ " In this particular book or place," I assume, ho means. 1 66 TOLERATION [ch. viii avoid suggesting this time-honoured way of dealing with dis- senters, religious or social — to deny the sincerity and to assail the character of those who differ from you even on questions of morality.^ He is on safer and surer ground when he says that "the convictions, sincere or otherwise," of some persons may have to be overridden in the interests, or what are sup- posed to be the interests, of the well-being of the community as a whole. So far as this general statement goes, we all — except a few amiable anarchists — agree with Father Rickaby. We may not like to admit the principle in words ; we adopt it in practice, and it is well that we should realise clearly that we do so, because we shall then be more fully alive to the re- sponsibility we undertake in all legislation which is intended to protect individuals, especially the young, against what we consider indecent literature, pictures, etc. If a person accused of disseminating indecent hterature pleads that he sincerely believes the incriminated works to be of real artistic value, or to contain sound doctrine wholesome and necessary for these times, the plea is not likely to weigh with a jury who sincerely believe the works in question to be detestable and pernicious rubbish. Wiser persons and a later generation may differ from the jury in their estimate : the typical juryman is not exactly the person whom the lovers of art and literature would like to entrust with the power of drawing up an Index Ex- piwgatorius. Still, if the law prohibits indecency, as most persons probably think it should, it seems safest to leave the interpretation of "indecency" to fair representatives of the community as a whole. Otherwise, who is to judge? AVe have given up the plan of a censorship, except in the case of stage plays : and the licensing functions of the Lord Chamber- lain are often severely criticised. ' In liis attitude to those whom he regards as in error as to matters of morals, Father Rickaby seems to me to come short of the principle of St. Thomas Aquinas, Avho holds (la 2ie, qu. 19, art. 5) that " when an errone- ous reason proposes something as the precept of God, then it is the same thing- to despise the dictate of reason as to despise the precept of God," which seems to imply that a person may sincerely have opinions about matters of morals and doctrine which St. Thomas Aquinas regards as very grave errors, e.g. that to abstain from fornication is evil, or that to believe in Christ is evil. These are Aquinas's own illustrations, and they are evidently chosen by him as opinions the most hateful to a mediaeval theologian. CH. VII i] TOLERATION 167 But while Father Rickab3^'s statement in its general form expresses the principle which is accepted with the consent of the majority in our legislation and in the administration of the law, there would be great difference of opinion as to the par- ticular " teachings " which we would have the State suppress. Aiid I doubt if any British legislature, or any British jury, would be likely to regard as an incitement to immorality the doctrine that there is no harm in doing anything that does tiot annoy your neighbour, which is just the definition that the French Declarations give of " liberty." I do not think the officials of the Post Office would consider a copy of The Rights of Man to be an obscene publication, or that any one is likely to be successfully prosecuted by a Vigilance Committee for selling a copy of Mill's Liberty ; and yet both of these works preach this " blatant and atrocious error " which Father Rickaby thinks that no one can sincerely maintain. The doctrine seems to me, indeed, so extremely vague and ambiguous that it is useless as a general principle or law of nature from which to deduce safe maxims of morals or legislation. It is a formula which implies the fallacious theory, as it seems to me, that there exist purely self-referrent actions, and that these can always be easily distinguished from those that affect others. The word " annoy " and the word '' neighbour " stand also in need of definition. On the other hand, the formula does express in a very crude and rough way the great ethical principle which is coming more and more to supplant both the old theory of the Law of Nature and the appeal to external authority — the principle, namely, that right and wrong are to be judged by the standard of social well- being. The principle is expressed in a way open to misinter- pretation, because it implies the conception of society as con- sisting merely of mutually exclusive and repellent atoms. It is the Utilitarian principle, still hampered by the individual- istic basis which belongs to the theory of natural rights. It is by this very principle of social well-being that we must judge what limits are to be assigned to free speech and free action. And it is because the conception of the ethical end has itself undergone such great changes, and because the structure and environment of different societies have varied so much, that we can explain the extraordinary differences between different ages and countries in the matter of toleration. 1 68 TOLERATION [ch. viii Sir Frederick Pollock, in an essay on " The Theory of Per- secution," ^ has distinguished the grounds of persecution as (1) tribal, (2) political, (3) theological, and (4) social. (1) The Jewish persecution of Jews who became Christians will serve as an illustration of the first kind. In all societies of the more primitive type — I mean societies held together by the bond of real or fictitious kinship — the god or gods wor- shipped are the gods of the tribe, and to desert the worship of these gods, or worship them in a way not approved by tradi- tion, is to be disloyal to one's own family, one's own kith and kin. Persecution of this kind, though we should certainly call it "religious persecution," is best understood by us, if we think of the feelings of parents towards undutiful and re- bellious children, who have been led away by evil example. Persecution of this kind is not exercised towards aliens, so long as they do not interfere with the religion of the tribe ; but any wrong done or insult offered to the tribal god will readily pro- voke persecution. The popular hatred of the Christians which was apt to break out in various places throughout the Roman Empire is to be explained in this way. The Ephesians would not have molested the Apostle Paul if they had not thought their special goddess was being injured, — commercial interests, as often happens, supporting the prevalent religion. (2) The poUfical reasons for persecution are closely connected with the preceding, and grow out of them. A sharp line can- not, I think, be drawn between these two divisions. When the Athenians put Socrates to death for impiety, it was not, as has been well said, because he introduced false gods, but be- cause he introduced new gods. The religion of a Greek city- state was an inseparable part of its political and social life. The Sophists and Philosophers were exposed to attack on the grounds of introducing dangerous innovations into the State. With the establishment of the Roman Empire we see clearly the predominance of political over tribal grounds of persecu- tion. Under the Roman rule, local cults were not interfered with. The Romans tolerated every kind of religion, except (a) those whose rites seemed to conflict with public morals and public order— like the orgiastic worship of Bacchus — and (6) those which seemed to threaten the stability of the Empire. * Essays in Jurisprudence and Ethics, pp. 144 seq. I have followed out in my own way some of the ideas suggested in this admirable essa}'. CH. viii] TOLERATION 169 Druidism and Judaism both suffered at the hands of the Romans, because and in so far as they stirred up political re- bellion ; but the Jewish religion was treated with great tolera- tion on the whole. So far as the Christians suffered molestation or punishment from Roman magistrates, it was because their missionary spirit disturbed the peace of families and of towns, their secret meetings roused suspicion of social danger, their attitude to existing institutions seemed to be anarchical, and their refusal to offer incense to the Emperor's statue appeared a clear proof of disloyalty. They were punished, not on the ground of their beliefs, unless we except their belief in the speedy destruction of the world — not, however, on the ground of any of those beliefs which have remained a permanent part of Christian theology^ but on the same sort of grounds as those on which Social Democrats have been punished in Germany, and Nihilists in Russia. So far as religion goes, the Roman Empire was perhaps the least persecuting government that ever existed on a great scale before the present century, and under no condition of affairs that had previously been known in the world had a missionary religion greater opportunities for spreading itself. The general attitude of the Roman official to the Christian apostle was to protect him from the fanatical vengeance of the offended " tribal " religion of the Jews, His enemies accused Jesus of blasphemy before the Jewish high priest, but before Pilate they accused him of treason against CaBsar. Pagan Rome tolerated all religious doctrines, and tried to keep the peace between rival religions in the same way that the British magistrate does in India.' We have prohibited widows from burning themselves, and we endeavour to prevent disorder. But the model civil servant is as "indifferent" to a theological quarrel between two sects of Mohammedans as was Gallio to what seemed to him a mere squabble between two sects of Jews. (3) Persecution, in the sense of repression for the purpose of maintaining true doctrine, is the outcome of Christianity. ^ In what I have said about the treatment of the Christians under the Roman Empire, I do not think I have said anything? inconsistent witli the views either of Prof. W. M. Ramsay in his book on The Church in the Roman Empire, or of Mr. E, G. Hardy in his Christianity and the. lloman Government. My statement is a rough, general one, taking no special account of variations of time and place ; but I think it is true on the whole, and certainlj- true of the earlier historj- of the Church. ijo TOLERATION [ch. viii Such an assertion may seem a malignant slander, inexcusable in any one who remembers the words ascribed to Jesus in the Gospels "Forbid him not," spoken of one who followed not with the disciples, and yet used the name of their Master to cast out devils ; ^ or the rebuke addressed to James and John, when they wished to call down fire from heaven on the Samaritans who would not receive their Master ; '^ or the lesson taught, but so often overlooked, in the parable of the Good Samaritan,^ where the alien and heretic is held up as a model to be imitated, because of a kind action, rather than the priest and Levite of orthodox Judaism ; or the passages in which, in the spirit of the greatest of the old prophets, deeds of justice and mercy done in the service of humanity are made the passport to the kingdom of God, and not the profession of sound belief;'^ or the parable of the tares and the wheat, where the lesson of tolerance seems very explicitly taught.^ Still more strongly might persecution seem to be excluded by the precepts of non-resistance ^ (which most Christians have, however, decided to be impracticable in their literal form), and by the prayer of divine pity on the cross : " Father, forgive them, for they know not what they do."'' The words " Com- pel them to come in " ^ have, we know, been used to sanction the attempt to save souls from everlasting fire by penalties of terrestrial burning; but such a use of the words is just one of the many mischievous absurdities which result when any book whatever is taken as a series of " texts " to be quoted, without reference to time and occasion, as absolute and final authorities ' Mark ix. 39 ; Luke ix. 50. ^ Luke ix. 54, 55. » Luke X. 25-37. * Matt. vii. 21-23 ; xxv. 31-46. * Matt. xiii. 24-30. This parable is referred to by St. Thomas Aquinas, 2a 2ae, qu. 11, art. 3, as an argument that might be used for the toleration of heretics. On the same side he mentions also (1) 2 Timothy ii. (24-26) : *'The Lord's servant must not strive, but be gentle towards all, apt to teach, forbearing, in meekness correcting them that oppose themselves, if peradventure God may give them repentance unto the knowledge of the truth," etc. ; for, as Aquinas says, if heretics are not tolerated, bvxt put to death, the power of repentance is taken away from them. And (2) 1 Cor. xi. (19), " There must also be {oportet esse) heresies among you, that they which are approved may be made manifest among you.'' Against toleration he quotes only the passage from the Epistle to Titus, iii. 10, 11. Yet he sums up, as we have seen, against toleration. The " Conclusio " only is given in Father Rickaby's translation. ^ Matt. V. 38-42. ' Luke xxiii. 34. ^ Luke xiv. 23. CH. viii] TOLERATION 171 on matters of belief or practice. " I cume not to send peace, but a sword," ^ is a prophecy, a warning of sufferings to come, and most certainly not a precept of persecution. We have already seen how the words of the Epistle to Titus, which imply a much more definite religious organisation than any of these sayings of the Gospels, are used by St. Thomas Aquinas to justify persecution. But in the Epistle to Titus not one word is said of anything beyond spiritual excommunication : " A man that is heretical (or factious) after a first and second admonition refuse (or avoid), knowing that such a one is per- verted, and sinneth, being self-condemned."^ It is very easy, however, to see how, when Christianity had become the pre- vailing religion in any district or community, the avoidance of intercourse with a heretic might come to be as effectual a measure for repressing the utterance of opinions disapproved of by the majority, or by those who controlled their conduct, as the " boycott " has proved to be in more recent times. The maintenance of uniformity of belief and practice and the exer- cise of a strict censorship over doctrine and morals within any Christian community thus prepared the way for the use of the secular arm in the repression of heresy, when the Roman Avorld became converted to Christianity. When we speak of " Christianity " in any comparison be- tween it and other religions, we mean, of course, the Chris- tianity which has actually manifested itself in history'', and not what any one may conceive to be the ideal of the religion as originally taught. It is manifestly unfair to compare an ideal of one religion with the actually prevalent precepts and practices of another. Now, in the sense in which we say that Christianity became the religion of the Roman world, in the sense in which we say that Christianity is now the religion of the most progressive and civilised part of the world, in the sense in which we compare the numbers of Christians with the numbers of Buddhists and Mohammedans, in that sense Christianity has been a persecuting religion, and persecution has been of the essence of it in a sense in which that could not be said of any of the older tribal or political religions which it supplanted. This is the historical sense of Chris- tianity — the only sense which the term can bear in any scientific discussion ; in any other sense its meaning will vary ' Matt. X. 34. '' Epistle to Titus iii. 10, 11. Cf. above p. 1(;2. 172 TOLERATION [ch. viii according to those passages of the Gospels^ or of the FauUne Epistles^ or of the whole of the New Testament^ or those inter- pretations of them which approve themselves to this or that person.^ Christianity in this historical sense is a religion which to elements derived from Jewish prophets has added elements derived from Greek metaphysics, and elements derived from Roman political administration : it is a religion with definite theological doctrines and a definite system of government and discipline ; and it was only as such that Christianity could possibly have been the vehicle through which the northern barbarians, who destroyed the old civilisa- tion, could have received, as they did, an inheritance — maimed, indeed, and mutilated — of Greek intellectual culture, and of Roman legal and political institutions. The importance assigned to the possession of truth — of the truth — is one of the most fruitful ideas which Christianity has diffused in the modern world. From it has grown up that scientific spirit which is proving fatal to some traditional be- liefs — a devotion to truth as such, which in the ancient world ' Thus, if some one quotes the dicta of St. Paul as expressing the Christian theory of the status of women, it is replied that the true Chris- tian theory is not to be found in the Pauline Epistles, but in the teaching and life of Jesus (who, however, though he had women among his followers, is not recorded to have chosen a single woman among his Apostles). The relation of Christianity to the status of women is a sub- ject capable of, and deserving, historical study ; but we must take the whole range of Christian thought and practice on the subject, and not a few arbitrarily selected '"texts" interpreted for the occasion. There is an interesting article on the sub ject of " The Position of Women among the Early Christians" in the Contemporary Jieview for September, 1889 (vol. 56, p. 433 seq.), by Principal Donaldson; and this is what so scholarly and impartial a writer feels obliged to say : "It is a prevalent opinion that woman owes her present high position to Christianity and the influences of the Teutonic mind. I used to believe tliis opinion, but in the first three centuries I have not been able to see that Christianity had any favourable effect on the position of women, but, on the contrary, that it tended to lower their character and contract the range of their activity." Like other writers {e.c/. Mr. Galton), Dr. Donaldson calls at- tention to the mischief done to the race by the exaltation of virginity above marriage, and the consequent survival of the morally and intel- lectually unlittest. Yet, even on this, one must not exaggerate. How much more have the celibate Latin clergy done for civilisation than the married Greek clergy ! Even if all the celibate Christians of the first three centuries had married and left offspring, this, so far as one can see, would not have hindered the barbarian invasions. CH. viri] TOLERATION 173 was known only to a few philosophers.' But this very exalta- tion of the importance of knowing the truth was the source of " the persecuting spirit " when the truth was preached and thought of, not as something to be sought for by patient inquir}^, as something towards which the " Spirit of truth " - would gradually guide mankind, but as a precious treasure, or " deposit of doctrine," already possessed and enjoyed by the duly accredited teachers of the Church. Such a treasure might well seem fit to be defended and protected from everything that would diminish its size or impair its beauty. Among the rude barbarians out of whom the Church has moulded the nations of modern Europe, this was the only way in which " the truth " was likely to be thought of. Add to this manner of conceiving truth the necessity of enforcing a rigid discipline, especially whilst the State was in so many ways a weaker power than the Church, and the claim of the Church to be the one universal religion of the whole world, and it is difficult to see how an orthodox theologian of the thirteenth century, or any of those who derive their ideas from him, can escape from believing in the duty of repressing false doctrine where it is possible to do so, and by such means as experience has shown to be best for the purpose. The growth of large and powerful communities of " heretics " has obviously made it inexpedient or difficult to use the secular arm in direct defence of ortho- doxy ; and certain forms of punishment have gone out of fashion. A large part of the arguments used by Locke in his Leiters on Toleration are arguments which involve a complete ignoratio elencM ; they are completely irrelevant, if supposed to be ad- dressed to a Roman Catholic or to any one who holds, as the early Puritans mostly did, that his religious body is in solo possession of the one truth about the highest and most im- portant of all subjects. Thus Locke assumes that ordinary morality is more important than the unity of the Church in faith and doctrine, an assumption which would not liave been admitted by a great many Protestants of his own time. He assumes that he can lay down precisely the functions of Church and State respectively, and that " the care of souls cannot ' This affiliation was suggested to me, I think, by a remark of 11. Tarde's in one of his works, but I cannot at present Hud tlie passage. ^ Cf. the words in John xvi. 13. 174 TOLERATION [ch. viii belong to the civil magistrate," which he interprets to mean " that the magistrate's power extends not to the establishing of any articles of faith or forms of worship, by the force of his laws " — a principle which Anglican High Churchmen of the sevenfeenfh century type ^ would not have accepted, and which Roman Catholics could hardly accept in its generality, because the magistrate might be using his power under the guidance of the Church. Locke defines the Church as " a voluntary society of men, joining themselves together of their own accord in order to the public worshipping of God in such manner as they judge acceptable to Him and effectual to the salvation of their souls " — a definition of the Church which Roman Catholics, Anglicans, and Presbyterians (as they were in the seventeenth century) would all have considered unsatisfactory. He condemns persecution solely because he cannot find it in the New Testament — an appeal to the sole authority of Scrip- ture interpreted by mere private judgment, which a Catholic theologian could not allow. ^ And we have already seen how St. Thomas Aquinas deals with the argument from the New Testament. When Locke says that '' every Church is orthodox to itself; to others, erroneous or heretical," he makes what many people would consider a very sensible remark, even if it be somewhat of a truism ; but to an ardent theologian the remark may seem " a blatant and atrocious error," or to savour too much of flippancj^ to allow a belief in the writer's sincerity. Locke draws the line between essentials and matters indifferent in religion at a different point from that where Roman Catholic or strict Anglican or Presbyterian would draw it. He lays down that " there is absolutely no such thing under the gospel as a Christian commonwealth," a proposition which very few Protestants even would have accepted in the earlier part of the 1 Cf. Gardiner, Hist, of England, 1C03-1642, VII. p. 127. ^ In lieligion^s Peace: or, A Plea for Liberty of Conscience (1614), hy Leonard Busher — a work which is claimed by the Baptists as one of " the first articulations of infant libert3' " — the plan of toleration proposed in- cludes this provision : " that it be lawful for every person or persons, yea, Jews and Papists, to write, dispute, confer and i-eason, print and publish any matter touching religion, either for or against whomsoever, alirays provided they allege no Fattiers for proof of any point of religion, but only tlie Holy Scriptures^' {Tracts on Liberty of Conscience, 1614-1661, published by the Hanserd Knollys Society, 1846, p. 51). Such limited " liberty of conscience " would certainly have told hardly against many of the more learned controversialists of the seventeenth century. CH. viii] TOLERATION 175 seventeenth century, and which many even of those opposed to State churches would hesitate to accept now. He holds that " the care of each man's salvation belongs only to himself" — a doctrine of extreme individualism in religion which would be rejected by the great majority even of Protestants. Locke, that is to say, argues throughout from the point of view of a " Liberal Christian " of very rationalistic tendencies, and his arguments could only appeal to those who had gone a very long way in his direction, and could not be accepted even by the most liberal of Catholics without very important qualifica- tions. A change in the notion of what constitutes a Church, and a change in opinion as to what is essential in religious be- lief and what is not, and furthermore, a diminished sense of the importance of correct intellectual conceptions about the nature of God and the Divine plan of the universe, with, per- haps, some scepticism as to the possibility of attaining com- plete certainty in such deep matters — these are the necessary preliminaries to an acceptance of Locke's views on toleration. Contrast Locke's position with that of St. Thomas Aquinas or Father Rickaby, and we have a very excellent measure of the gap between the premises from which persecution (where convenient) is a necessary deduction, and the premises which exclude persecution, with some exceptions. For Locke's limitations are worth taking note of. Milton, in his Areo]^a- gitica^ excludes from the toleration he advocates " Popery and open superstition." Locke has no objection to tolerate what he would consider " superstition." " It may be said, what if a Church be idolatrous " — what most Protestants said of Roman Catholicism, what most Puritans said of the Church of Eng- land — "is that also to be tolerated by the magistrate? I answer, what power can be given to the magistrate for the suppression of an idolatrous Church which may not in time and place be made use of to the ruin of an orthodox one ? " — a good diplomatic argument. But Locko holds (1) that those ought not to be tolerated " who will not own and teach the duty of tolerating all men in matters of mere religion," and (2) that " that Church can have no right to be tolerated by the magistrate which is constituted upon such a bottom that all those who enter into it do thereby ipso facto deliver them- selves up to the protection and service of another prince." 176 TOLERATION [ch. viii Under either of these heads it would be easy to refuse tolera- tion to Roman Catholics. The important thing to note is, that in both cases Locke's reasons for excluding these two classes from toleration are not theological or religious, but purely political^ and the same remark applies to his reasons for exclud- ing Atheists. "Promises, covenants, and oaths, which are the bond of human society, can have no hold upon an Atheist." A Roman magistrate in the same way might have argued that a person who would not burn incense to the emperor's statue could not possibly be a safe subject. Locke's minimum of belief requisite in those who are to be tolerated comes to very much the same as Rousseau's " dogmas of the religion of the citizen as such " (if so we may paraphrase " la religion civile "), which are as follows : " the existence of a God whose attributes are power, intelligence, beneficence, foreknowledge, and providential care ; a future life with rewards and punishments, the sanctity of the social con- tract and the laws — these are positive dogmas. As to negative dogmas, I limit them to one only — intolerance. . . . One should tolerate all those who tolerate others, so far as their dogmas contain nothing contrary to the duties of the citizen. But whosoever dares to say. Out of the Church no salvation, should be driven from the State." " It is impossible," Rous- seau says, " to live in peace with those whom one believes damned," so that theological intolerance by itself excludes from citizenship on political grounds.^ Rousseau's dogmas seem, indeed, rather more numerous than those of Locke ; and the citizen of Calvin's Geneva anathematises in a sterner tone than the countryman and admirer of the mild and judicious Hooker. But Locke and Rousseau alike base the " persecu- tion " they justify on purely political grounds. Very many persecutions, which have been regarded by those who suffered from them, and even by critical historians, as " religious persecutions," i.e. forcible interferences on the part of the State with liberty of expressing opinion on theological matters and with liberty of worship, are much more properly classed as " persecutions" in the interests of political security- and social peace and order. The persecutions of the Christians under the Roman Empire, certainly those under the early Empire, were acts of repression in the interests of political 1 Contrat Social, IV. cli. viii., "De la religion civile." CH. viii] TOLERATION 177 stability. Tlie Roman magistrate, as I have already pointed out, did not punish the Christians for preaching the theological doctrines distinctive of their faith, as magistrates in Catholic countries afterwards punished Protestants, or as magistrates in Catholic and Protestant countries have often punished Socin- ians and Atheists ; to the Roman magistrate it was a matter of comparative indifference whether the Christians worshipped as a God one whom the Jews declared to be a man guilty of blasphemy, and whom a Roman magistrate had, foolishly perhaps, put to death as a rebel against Caesar; but to the Roman magistrate and to the Roman Emperor it did seem important to discourage secret assemblies and movements likely to cause a breach of the peace, and to ensure the poli- tical loyalty of the subjects and citizens of Rome. Now the persecution of Roman Catholics, and specially of the Jesuits in England in the days of Queen Elizabeth, was a persecution, in the main, for political reasons, — certainly after the Pope, Pius v., had issued a bull of excommunication against the queen. After that, how could any one believe that a conscien- tious Roman Catholic could be a loyal subject ? ^ The writ- ings of some Jesuits — whether disapproved or not at Rome — had, moreover, undoubtedly justified the assassination of heretical princes who persecuted the true religion ; and every Jesuit was therefore — presumptively — an instigator of treason. The methods of enforcing uniformity of religious worship adopted in Elizabeth's reign are, indeed, uncongenial to the modern mind ; and it may very well be argued that the perse- cution of the Puritans was the beginning of a fatal policy which led to the civil dissensions of the following century, and was thus a most mistaken piece of statecraft. But with regard to the repression of Roman Catholicism, the case is somewhat different ; and it is quite possible for the historian, who regrets ' The Earl of Southampton asked Mary's (the Queen of Scots) ambassa- dor, Bishop Lesley, whether, after the Bull, he could in conscience obey Elizabeth. Lesley answered that, as long as she was the stronger, he ought to obey her. (The story is referred to by Hallam, Const. Hint, ch. iii. [" World Library " edit., p. 115 note].) If that was a widespread sen- timent, Elizabeth's supporters had strong motives for keeping her the stronger : the rest was a question of means. And it may be very well argued that a toleration such as commends itself to us might have been fatal to the maintenance of Protestantism in England in the time of Elizabeth. N. K. N 1 78 TOLERATION [ch. viii that Catholic emancipation was so long delayed in this century, to recognise that to statesmen of Elizabeth's day stringent measures may have seemed necessary purely on political grounds. "Was her government sufficiently stable to afford to tolerate those whose interest it undoubtedly was to upset her government if possible ? The rigid uniformity of belief en- forced in Geneva or in Massachusetts was enforced, partly at least, on political grounds — to ensure a sufficient amount of cohesion in small communities struggling for their liberty. Such communities cannot afford to tolerate those who only ask for toleration, till they are strong enough to seize the govern- ment and refuse toleration to others.^ The Federal Constitution of Switzerland may be regarded as very fairly representing the attitude of a democratic but prudent people, experienced in the working of institutions, towards the alleged right of religious liberty. The Swiss Con- stitution embodies elements derived from the experience (under which I include the mistakes) of French and American Con- stitutions ; and the Swiss Federal Constitution guarantees religious liberty in a fuller sense than is done by the Constitu- tion of the United States of America. The American Federal Congress is forbidden (by the first Amendment to the Constitu- tion) "to make any law respecting an establishment of religion, or to prohibit the free exercise thereof, or to abridge the free- dom of speech, or of the press " ; but the several States are left " free " to restrict the freedom of individuals on these matters. As a matter of fact, all the State Constitutions do now provide for religious freedom, and for the equality before the law of all religious denominations and their members ; but several States, especially in the South, make any one who denies the existence of God ineligible for office (Arkansas, Maryland, Mis- sissippi, North Carolina, South Carolina, Texas) ; in two States, Pennsylvania and Tennessee, another dogma of the " civil re- ligion " is required — the belief in future rewards and punish- ments. In Arkansas and Maryland a person who does not accept this belief is incompetent as a witness or juror,- "Ne- vada," we are told, " has recently disfranchised all Mormons resident within her bounds."^ Many of the States, especially > See Note A at the end of this chapter. ^ Bryce, American Commonwealth, II. pp. 36, 37. 3 Ihid., III. p. 467 note. If it be said that the Mormons are not dis- CH. VI 1 1] TOLERATION 179 in the North, had what were virtually State Churches till some time after the beginning of this century.^ But " religious equality," as it is called, which simply means the absence of an Established Church, has nothing directly to do with the ques- tion I am at present considering, viz., the amount of liberty of expressing opinions on matters of religion, and the amount of liberty in following the precepts of this or that religion guaranteed to the individual. Although in Switzerland every canton has an Established Church or several Established Churches (the Swiss mode of recognising the equality of re- ligious bodies), the Federal Constitution of 1874 lays down (Art. 49) that " freedom of conscience and belief is inviolable," that "no person can be constrained to take part in a religious society, to attend religious instruction, to perform a religious rite, or to incur penalties of any kind whatever on account of religious opinion." Furthermore, " the exercise of civil or political rights shall not be abridged by any provisions or con- ditions whatever of an ecclesiastical or religious kind." These are provisions which restrict the power of the several cantons as well as of the Federal Government to limit individual liberty, and not, like the provision I have quoted from the American Constitution, restrictions on the action of the Federal Legislature only. But the Swiss Constitution, though thus more favourable than the American to the liberty of the indi- vidual in matters of religion,^ sets very distinct limits to that franchisee! on religious grounds, this onlj^ furnishes another illustration of what I am urging about a great deal of what is called " religious persecution " — that it is professedly political or social. 1 Article 3 of the " Declaration of Rights " of Massachusetts, 1780, ex- pressly asserts the right of the people to invest their legislature with the power to require the several towns and parishes " to make suitable provision, at their own expense, for the public worship of God, and for the support and maintenance of public Protestant teachers of pietj^, re- ligion and morality in all cases where such provision shall not be made voluntarily." This article remained unaltered till 1833. 2 Professor Vincent, in his admirable w^ork on 8tat(t and Federal Government in Switzerland, thinks that "so long as the cantons main- tain established religions, or even attempt to support the ministry of all the chief sects alike, there will bo limitations to religious liberty not known in the United States. ... So far as private belief is con- cerned, no limitations are set ; but as to taxation for religious purposes, complete freedom is yet to be obtained " (p. 98). This passage seems to me to show some confusion between the " liberty " of {i.e. the absence of I So TOLERATION [ch. viii liberty. In the same Article, 49, it is provided that " No person shall, on account of a religious belief, release himself from the accomplishment of a civil duty," which means among other things that a Quaker's conscientious objection to bear arms would not be respected by the law. The 5()th Article provides that "the free exercise of religious worship is guaranteed within the limits compatible with public order and good morals " ; and on grounds of public order noisy processions have been pro- hibited, although they constituted the mode of worship of a religious body. Article 51 prohibits the reception of the order of the Jesuits, and of societies affiliated with them, in any part of Switzerland. Now the Quaker, the member of the Salvation Army, and the Jesuit may all declare that they have undergone " religious persecution " in Switzerland ; but in all cases the ground of action on the part of the Swiss authorities is political and social, not theological. In this country, so far as the law of the land is concerned, freedom of discussion on religious matters is not recognised. It is still possible to prosecute any one who has been educated in Christianity for denying the authority of the Scriptures. Practically we know that an anti-orthodox lecturer or writer is not Hkely (that is all. we can say) to be found guilty by a jury, if he does not grossly offend the average sentiment of the community by coarse and offensive attacks on prevalent beliefs. The punishment, when nowadays inflicted, is a punishment for a breach of good manners and decency in State control over) religious hodies, and the liberty of the individual in matters of religious belief {i.e. absence of civil or political disabilities arising from the opinions of the individual). Even on the matter of " taxation for religious purposes," the Swiss Federal Constitution lays down that "No person is bound to pay taxes of which the proceeds are specifically appropriated to the actual expenses of the worship of a re- ligious body to which he does not belong. The details of the carrying out of this principle ai-e reserved for federal legislation " (Art. 49). But let us grant that, through imperfection in such legislation, a small fraction of the taxes paid by a conscientious " free thinker," who doubts a future life, is divided among the four established churches of Neuchatel (where " the liberty of the conscience of the ecclesiastic " in the Protestant Church is declared inviolable — no test being permissible), has he less " religious liberty " than he would have in the State of Arkansas, where his evidence would not be received in a law-court maintained out of taxes that he cannot escape pajdng ? To the probable pressure of public opinion in the way of restricting liberty of thought under the latter condition. 1 am not here referring. CH. VI 1 1] TOLERATION iSi controvers}'' rather than a punishment for heresy. And it would be more in accordance with national honesty, as well as a necessary security against the possibility of purely " theo- logical " persecution in some time of panic, if legislation expressly determined the limits of free discussion by consider- ations of decency alone, and not by any considerations of doctrine.^ In all countries, indeed, even in those which guar- antee a natural right of liberty to their citizens, the liberty practically conceded depends on the prevailing sentiment of the community more than on anything else. The standard of what is permissible in controversy is in the last resort deter- mined by the prevailing sentiment of the community, and at the present moment there is probably in this country, at least in large towns, a greater practical liberty, or license, in the matter of religious or irreligious eccentricity than is enjoyed, or dreaded, by the citizens of most of the American States. At the same time it must be allowed that the existence of an express declaration in favour of liberty of any kind — how- ever little it is actually guaranteed by the existing laws — has a certain moral effect in influencing the sentiment of the com- munity, and it may at least supply any one who is struggling for greater liberty than exists with. a convenient rhetorical premise. On these grounds, as already suggested,^ Declarations of Rights have their practical advantages. I have not attempted to distinguish (4) " social " ^ from " political " reasons for limiting libertj'- of expressing opinions, or of performing what may be considered religious acts. As * The Anglo-Indian Penal Code may be taken as representing admirably the principle on which alone most thoughtful persons in this country would nowadays think it right to limit "liberty " in matters of religion. Thus chapter xv. sec. 298 makes insult^ with deliberate intention, to any religion, penal. The preceding sections forbid injuring or defiling places of worship with intent, disturbing religious assemblies, trespassing on burial places, etc. In chapter xiv. sec. 292, under the clause making penal the printing or exhibiting, etc., of obscene books, paintings, etc., an excep- tion is made in favour of " representations, sculptured, engraved, painted, or otherwise represented, on or in any temple or on any car used for the conveyance of idols, or kept or used for any I'eligious purpose." Aristotle even in his ideal state is similarly complaisant to existing religious pre- judices. " Let the rulers take care that there be no image or picture representing unseemly actions, except in the temples of those gods at whose festivals the law [i.e. custom] permits even ribaldry." — Pol., VII. 17, § 10. * Cf. above, p. 156. ' Cf. above, p. 168. iS2 TOLERATION [ch. viii already suggested, I do not think the Tribal, Political and Social Reasons can be clearly distinguished from one another. All are different stages of the same principle, and all together can be distinguished from the " theological " reasons. It might indeed be said that in the tribal stage of society the political and theological reasons were simply not yet differentiated. The cohesion of the tribe and the worship of the tribal god fwho is perhaps thought of as the ancestor of the tribe) were bound up together. An insult to the god was an insult to the tribe. In the clearly political stage of thought on the subject, it is possible to recognise the principle Deorum injurice dis curce, interfering with religion only for reasons of State, for the re- pression of treason or the maintenance of peace and order. In the distinctly theological stage, on the other hand, the purity of doctrine is something to be maintained, even at the risk of temporal loss and injury to the nation ; purely theo- logical persecution has therefore usually been more an eccle- siastical ideal than a historical fact. In practice, elements of tribal sentiment or supposed political and social expediency have generally been among the motives which have induced the secular magistrate to put his sword at the disposal of the spiritual power. We judge past ages very unfairly if we suppose that people could have been actuated by the same motives which are predominant now, still more if we suppose that the circum- stances in which they had to decide on a course of action pre- sented themselves to their minds as they do to ours now in the light of subsequent events ; and most of all do we judge un- fairly, if we neglect the difference between their circumstances (as they saw them) and the circumstances with which we are familiar. In primitive conditions of society — I am using the term " primitive " in a very wide sense — in a tribal society or a small Greek city-state living in perpetual fear of attack from without, a very rigid cohesion is the primary essential of ex- istence, and therefore the most important factor in all moral judgments. A society of this sort which did not repress dis- senters from the worship that held the community together would have little chance of holding its own in the struggle for existence. Even the powerful and intelligent city of Athens suffered, not perhaps from the corruption introduced by the Sophists, but from the decay of social cohesion and the CH. viii] TOLERATION 183 growth of individualism, of which the appearance and popu- larity of the Sophists was only one symptom. We should not blame the average Athenian too severely if he thought the teachings of Socrates socially and politically dangerous ; we may be grateful to Athens that the degree of toleration she did allow made the teaching of Socrates possible through so many years. The great empires like the Persian, the Macedonian, the Roman, contained within their limits many tribal religions and many city-state religions, and it is in the co-existence of these differences under the shadow of one ruling power that we get the first form of toleration as a recognised principle. In the Middle Ages it must be remembered that it was the Church rather than the Holy Roman Empire which really in- herited the sovereignty of Rome ; and the persecutions of heretics at the suggestion of the Church may be regarded as the endeavour of the Church to maintain its own cohesion — an endeavour greatly checked by the mutual jealousy of the differ- ent parts of Christendom. The Reformers certainly did not think of themselves as setting up new Churches alongside of the existing Church. For them also there was only one Uni- versal Church, though there might be considerable permissible differences between its forms in one nation and in another. But the growing varieties of Protestantism and the success of the Catholic reaction made the theory, and even the ideal, of one Universal Church seem, to statesmen at least, more and more impossible ; and people became accustomed to the idea of different political societies living alongside of one another, and yet adhering to different religions. Cujus reglo^ ejus religio — that the religion of the people must follow the religion of the prince — seems to us the very reverse of a principle of religious liberty ; but there is no doubt that its acceptance as a political necessity marked an important advance in the direction of toleration. It put aside the idea of a crusade for the universal destruction of heresy. That different religious communities might safely be permitted to co-exist within the same political community was an idea that took a much longer time to pre- vail. In Switzerland, as a whole, it was not recognised till 1848. The efforts of minorities to gain toleration for themselves in the hope of finally prevailing prepared the way for acquiescence in mutual toleration without the hope of uniformity. No re- ligious body as such can claim the merit of having adopted 1 84 TOLERATION [ch. viii toleration as its principle, till a certain amount of toleration had already been forced on them by the practical necessities of the statesman. Roman Catholic, Anglican, Presbyterian, In- dependent have all been persecuted, and have all persecuted when they had the opportunity. If the Baptists have never persecuted, it must be borne in mind that they never had the opportunity. The Quakers indeed may claim the honourable distinction of having been often the victims but never the agents of religious persecution ; but a nation of Quakers could never have existed without deserting the principle of non-resist- ance. They would have been the easy prey of any enterprising neighbour.^ They could only become a nation by converting the whole world, and if they did so they would probably undergo a change like that which makes the difference between the Christians of the first and those of the fourth century — between the apostles and the Emperor Constantine. Apart from a strict application of the principle of non- resistance, the adoption of toleration as a principle implies either a statesman's view of religious differences as compatible with political cohesion — a view only possible when a consider- able degree of political and social stability has been attained ; or it implies the adoption of an attenuated religious creed, so that the number of non-essential articles increases, while that of essentials diminishes. Locke could tolerate diversity of opinion about the sacraments or about the Trinity : these seemed non-essential to him. But, as I have shown, his argu- ments have no force against those who really think a right belief about the Trinity, or a due observance of the sacra- ments, essential to salvation, as Locke thought the belief in a God essential to social and political stability. The growth of charity is greatly due to the decay of faith, if " faith" is to be measured by the number of doctrines in which people ' Pennsylvania may seem to be a refutation of this statement; but the Indians with whom the Quaker settlers in Pennsylvania had to do were only the Delaware?, who were in subjection to the powerful Iroquois, who were the firm allies of the English against the French (see Fiske, The Beginnings of Netv England, p. 206). The Quakers profited here, as else- where, by the fighting habits of other people. In the earlier half of the eighteenth century, during the struggles between the English and the French in America, Pennsylvania suffered much from Indian raids, her Quaker inhabitants not defending the frontiers (Thwaites, The Colonies [in " Epochs of American History "], p. 277). CH. viii] TOLERATION 185 profess to believe. On the other hand, if faith be taken to mean faith in human nature and in the rationality of the pro- cess of evolution, it is only such faith that makes toleration possible ; for to such faith the various beliefs about which men have fought so fiercely are " but broken lights," or par- tial truths, which are false if taken to be the whole truth. That there should be diversity of belief may even be thought of as an advantage : there is more variety for natural selection to work upon. There is a security against stagnation. There is an educative influence in the substitution of peaceable dis- cussion for forcible repression. To many, such an attitude towards religious questions may seem incompatible with what they regard as the necessarily dogmatic character of religion. Believing that they possess absolute certainty on some matters at least, they may yet allege that they do not wish to persecute, but only to persuade. Probably nowadays the most bigoted religionist does not really wish to hum the worst of heretics, even if he had the power, and was not in fear of reprisals. But suppose him to have the power to control the educational system in a country, and to check the diffusion of what he considers blasphemous and immoral literature ; if a scholar or a scientific man in such a country is prohibited from teaching, and finds that the works of Renan and Strauss, of Darwin and Spencer, which he has ordered from abroad, are seized and destroyed on the frontier, is it wrong to say that he is " persecuted," merely because he is not burned along with the heretical volumes ? Undoubtedly a milder tone has spread into the words even of those whose principles lead logically to intolerance. Just as Protestantism has influenced the Catholicism which rejected it, so that toler- ant and reverent Rationalism, of which Locke was one of the great initiators, has influenced Protestant and Catholic alike : and the duty of repressing heretics by the secular arm, where it is possible and expedient, is a principle that is kept in the background, from a sort of politeness, or is only treated as an ancient weapon, to be laid up in the museum rather than in the armoury, and to be referred to with a sort of pious regret, like the sigh for the godly discipline of old days at the be- ginning of the Anglican Commination Service. Ought we to tolerate those who are bound by their professed i86 TOLERATION [ch. viii principles not to tolerate us ? On this question of casuistry, the doctors of "Liberalism" have answered differently ; " No " (as we have seen) is the answer of Locke and E-ousseau ; " Yes " is the answer of Renau, in a passage in his Lectures on Rome and Christianity. " I have no right to prevent any one from expressing his opinion, but no one has the right to prevent me from expressing mine. That is a theory which will appear very humble to the transcendental doctors who believe themselves in possession of absolute truth. We have a great advantage over them. They are obliged in consistency to be persecutors ; as for us, we can be tolerant, tolerant even towards those who, if they had the powxr, would not be tolerant towards us. Yes, let us go as far as this paradox : — Liberty is the best weapon against the enemies of liberty. Certain fanatics say to us with sincerity, ' AVe take the liberty 3'ou give us, because you owe it to us on your principles ; but you should not receive it from us, because we do not owe it to you.' Very w^ell, let us give them liberty all the same, and do not let us imagine we shall be cheated in the bargain. No ; liberty is the great solvent of all fanaticisms. In demanding liberty for my enemy, for him who would suppress me if he had the power to do so, I give him in reality the worst gift he could receive. I compel him to drink a strong beverage, which will turn his head, whilst I shall keep mine steady. Science can endure the virile rule of liberty : fanaticism and superstition cannot endure it. . . . The essential thing is not to silence a dangerous doctrine, to quench a discordant voice ; the essential thing is to put the human intellect in a condition in which the mass may see the uselessness of these outbursts of anger. AVhen such a spirit becomes the atmo- sphere of society, the fanatic cannot find anything more to live on. He is himself vanquished by the prevailing gentleness." ^ Now, this characteristic passage of the great French writer contains a profound truth, which rests on facts of ordinary human nature, and on a large experience of history. But the principle of tolerating even the intolerant is asserted in too general terms. When we believe that the principle of intoler- ance has become a mere pious opinion, a mere " counsel of per- fection " for a commonwealth that is not likely to be realised, it is easy enough to give to those who hold the principle and ^ Conferences cFAiigleterre, pp. 205-207 (Hibbert Lectures, 1880). CH. viii] TOLERATION 1S7 proclaim it the toleration of an easy-going contempt. But when some new belief is still struggling for existence amid hostile surroundings, as was the case with Pi-otestantism in the six- teenth century, a general toleration on the part of those hold- ing the new belief is more doubtful policy, and is certainly less likely to be thought of. Direct persecution has indeed almost always proved a clumsy and inefficient measure of securing uniformity, unless, as was the case in Spain, it is made so thoroughgoing as to sap the whole intellectual vigour of a people. But few persons have the opportunities or the special gifts required to make the perfectly unflinching persecutor; and any inconsistent clemency allows some seeds to survive that will spring up again, watered by the tears, if not b}' the blood, of martyrs. On the other hand, an absolutely universal toleration is inconsistent with any social cohesion whatever. It is only on the basis of a firmly established foundation of political and social stability that what are generally understood by liberty of religion, liberty of the press — liberty in the propa- gation of opinions generally — can be granted or are likely to be granted. Only those who feel themselves secure can aftbrd to tolerate attacks upon themselves ; and toleration is then their wisest policy. The last sentences in the passage I have quoted from Renan suggest that he is assuming what in the eyes of some of the " enemies " he tolerates would seem a very important restric- tion on liberty. Who is to control education? Even Lord Burleigh was prepared to tolerate Papists, provided that he might bring up their children as Protestants.^ Suppose a country in which complete liberty of the press, complete liberty of religion (and of irreligion), complete liberty of association were all guaranteed by the law, or, if you like, by the absence of all laws on the subject ; suppose, moreover, that in such a country the Government rigidly abstained, in the interests of complete liberty of thought, from instituting any system of public education whatever. Suppose, in fact, that we had the ideal state of Mr. Auberon Herbert, or at least that of Mr. Herbert Spencer. But suppose, further, that the best schools in the country were those managed by the Society of Jesus, and that the members of this Society, constantly re- cruited by picked men from other countries as well as from ' See note A at the end of this clicapter. i88 TOLERATIOy [ch. viii that "we are considering, gradually obtained, througli their influence as educators, a complete ascendancy over the majo- rity of the population ; is it difficult to foresee that ecclesi- astical denunciations and excommunications would come to be more deterrent than any laws in checking the growth of heresy or free-thought ? And it would be only a step farther to suppose the whole population, with hardly a protest, abolish- ing the unchristian '' Liberalism "' of the old constitution (or we should rather say, of the old Anarchy), and agreeing to the establishment of a " Christian Commonwealth," which would bum every copy of Eenan"s works on the frontier. With a general system of education in the hands of the Government, with Universities free from clerical control, or affected by very diverse theological influences, and with cleri- cal influence largely neutralised by ecclesiastical dissensions, with the consequent intermingling and intercourse of those brought up in different religious beliefs : it is possible to toler- ate the advocates of a hypothetical intolerance — possible even to tolerate the Jesuits, when they are not too numerous, and when there is a traditional hostility to them well diffused throughout the community. But it is all a question of time and place ; and, in the interests of toleration, it would be un- wise to adopt any such extreme principles as would be likely to endanger toleration itself. As to education, that cannot safely be left alone by the State ; for education left alone by the State means either a very illiterate and ignorant popu- lation, or a population educated by voluntary associations — that is, mainly, by religious sects. In neither case is there much likelihood of any considerable amount of freedom of thought being practically granted. Many persons sincerely hold that a purely " secular " edu- cation, such as the State can ensure, contains grave moral dangers : and that some amount of religious teaching must be given — perhaps some minimum, stich as "the Bible." The policy may be a wise one, but those who advocate it have no right to allege that they are supporters of complete religious liberty. If we use language carefully, no one (except Anar- chists) does beheve in unlimited liberty of thought ; and, on the other hand, no one allows no liberty of thought whatever. Even the strictest of sects have drawn their own distinctions between things essential and things indifferent. Even the CH. viii] TOLERATION 189 most tolerant of persons would impose some check on tlie in- dulgence in personal abuse under the guise of freedom of opinion. It is easy to tolerate differences of opinion and of practice in matters which we regard as more or less " indif- ferent " ; it is very difficult to tolerate differences in what we regard as essentials, and, to some, it may seem questionable how far it is morally right to do so. People tolerate differences in matters of religion, but they are not so willing to tolerate differences of opinion in matters of moralit}^, except within somewhat narrow limits. A strong point with the advocates of very strict limits to toleration in matters of religion has always been that freedom of thought and expression in religious matters is certain to lead to free- dom of thought, and ultimately to license of conduct, in mat- ters of morality. To the average educated person in most civilised countries, it seems easy enough to differentiate re- ligious from moral questions, and especially easy to differenti- ate theological from moral questions, and consequently to allow a very wide liberty with regard to the former; while re- stricting by the pressure of public opinion, and sometimes by the agency of law, any similar Hberty with regard to the latter. There is indeed one obvious and important difference between religious and moral tenets : that the truth or falsehood of religious beliefs cannot be verified by reference to experi- ence ; whereas the effect of moral principles on conduct and the effect of conduct on social well-being seem to admit of such verification in experience. The effect of religious beliefs or dis- beliefs on the destiny of individuals in a future Hfe admits of no test which the ordinary understanding can be expected to apply ; their effect on the well-being of a society in the pre- sent world does admit of such a test, though it is a test which many ecclesiastics would not regard as satisfactory — they would refuse to consider material well-being, or even intellectual pro- gress, a proper measure of the value of religion. While willing to put down to the credit of Christianity the higher civili- sation and worldly success of the Christian nations, and while ready to put down " the horrors of the French Revolution " to the discredit of eighteenth century Rationalism, Catholic controversialists would not allow the greater material pros- perity and intellectual progress of Protestant countries to be considered an argument in favour of Protestantism.^ ^ '• The Church," according to Cardiual Newman, " pronounces the I90 TOLERATION [ch. viii When appeal is made, however, to moral superiority or moral progress, it is supposed that the appeal is made to something on which we are all agreed. Yet is the appeal as decisive as it might seem at first ? There are people who would measure the morality of a country solely by the paucity of illegitimate births ; yet a neighbouring people, with a less complete recognition of the virtues that keep the family together, may be superior in industry and in honesty. Take the number of suicides, the number of divorces, the number of convictions for murder, for assaults, for attacks on property'', the prevalence of drunkenness — any of the departments of conduct that admit of statistical enumeration — and we should find very conflicting results as to the moral condition of differ- ent countries. Moreover, it is useless to take any of these numbers and consider merely the percentage to population, without taking account of race, climate, industrial conditions, the laws of the country at the time, and the success with which they are enforced. Thus, e.//., in a country where divorce momentary wish, if conscious and deliberate, that another should be sti-uck down dead, or suffer any other grievous misfortune, as a blacker sin than a passionate, unpremeditated attempt on the life of the Sovereign. She considei's direct unequivocal consent, though as quick as thought, to a single unchaste desii-e, as indefinitely more heinous than any lie which can possiblj- be fancied; that is, when that lie is viewed, of course, in itself, and apart from its causes, motives, and consequences. [How a lie can be viewed " in itself," and yet ethically, is not explained.] Take a mere beggar-woman, lazj^ ragged, and filthj', and not over-scrupu- lous of truth— (I do not say she had arrived at perfection)— but if she is chaste and sober and cheerful, and goes to her religious duties (and I am supposing not at all an impossible case), she will, in the eyes of the Church, have a prospect of heaven which is quite closed and refused to the State's pattern man, the just, the upright, the generous, the honour- able, the conscientious, if he be all this, not from a supernatural power (I do not determine whether this is likely to be the fact, but I am con- trasting views and principles), — not from a supernatural power, but from mere natural virtue " {Anglican Difficulties, p. 206 seq., quoted by Mr. W. S.Lilly, in his Characteristics from the Writings of J.H.N.) . From the point of view of "the Church," as here explained, social pro- gress would be estimated by a standard incommensurable with that which the statesman is bound to applj-. The forms of Protestantism which incline to Antinomian views of pietj- would supply still more startling differences from the statesman's standard. A Highlander, who con- sidered himself a devout Christian, is reported to have said of an ac- quaintance: "Donald's a rogue, and a cheat, and a villain, and a liar; but he's a good, pious man." Probably Donald " kept the Sabbath — and everything else he could laj- his hands on." CH. viii] TOLERATION 191 is permitted on many grounds, there will be more divorces, but not necessarily more frequent violations of the duties of the family, than in countries where divorce is more difficult or impossible to obtain. Still, in spite of the dispute which may arise about certain parts of morality, there does seem to be a sufficient consensus of opinion as to right and wrong, which contrasts markedly with the differences of opinion as to matters of religion. People who would differ from one another in their views as to the nature of God, as to the possibility of miracles, as to the au- thority of Scripture, as to the definition of a Church, the value of the Sacraments, etc., would recognise a common standard on the leading principles of morality — so far as general state- ments go. As to the indispensability for human life of certain fundamental virtues, such as justice, fidelity, self-control, there would be no dispute. The differences would show them- selves, however, the moment it came to be considered what kind of acts were just ; under what conditions promises were and were not binding, and what degree of self-control was neces- sary in the different departments of life. As to what people will tolerate in the way of discussion on moral matters, I think we may say that they are generally ready to allow dis- cussion of a serious kind, provided any novel proposals do not go very far beyond what they are accustomed to, or else go so very far that they do not seem likely to bear practical fruit. Thus people who disapprove of all divorce may allow discussion on the subject of divorce, but would certainly disapprove, and might even be inclined to punish an attack on the institution of the family as they understand it. But an advocacy of com- plete community of wives and children, as in Plato's Republic, would seem too alien from their accustomed world to be likely to be of any practical danger to morality. There is, however, a growing feeling that discussion of moral principles is to be tolerated or not very much according to the seriousness of tone with which it is carried on, and the absence of appeals to individual passion or selfishness. This, we may say, is the modern form of the distinction which used to be made be- tween serious discussions among the learned and the dissemina- tion of dangerous and unsettling opinions among the ignorant multitude who are ruled by custom and authority and not by reason. When all are supposed by a convention of demo- 192 TOLERATION [ch. viii cratic sentiment to be reasonable, and when private judgment is claimed as a right, or recognised as a duty, the distinction comes to be drawn differently, the mode of speech being- accounted more important than the class of persons addressed. The same standard is therefore applied to controversy about moral, as about religious questions — a standard of decency rather than a standard of orthodoxy. It should not be for- gotten, however, how relative such a standard is ; and the wise maxim is therefore, in doubtful cases, to give the person ac- cused of "indecency," in speech or writing or act, the benefit of the doubt. Any repression that seems to any considerable number of serious-minded persons to err in the direction of in- tolerance is certain to be accompanied by clandestine attempts to evade the law, of which attempts there will not be suffici- ently general disapproval. To those who approach ethical questions with the idea that everything must have an indisputable and dogmatic basis, such a position may seem dangerous and unstable. How, it may be asked, are we to avoid complete moral anarchy if everything may be questioned, provided the assailant of ac- cepted principles says with any plausibility that he is a serious- minded person ? Such an objection ignores the principle on which scientific ethics rest — the principle of consistency or coherence — the principle which the Kantian ethics express in the form of universality. In moral matters, because of the necessities of education — if for no other reason — the burden of proof must be laid on the assailant of accepted beliefs. Any one who simply attacks and insults accepted beliefs about right or wrong may fairly be regarded as not a serious-minded inno- vator. He may fairly be asked to show that the principles he advocates would work out better than the accepted principles. The thief implies the existence of private property, and profits by it : his conduct does not belong to a system under which a society could exist at all. No society could exist hy every one stealing from everybody else. On the other hand, the advocate of communism may be wise or foolish ; but he is advocating a social system, and attacks existing institutions from the standpoint of an alleged better society. Similarly, the adulterer presupposes the existence of the family, and uses it to his own advantage : whereas the advo- cate of complete promiscuity may be foolish, but he is argu- CH. VI 1 1] TOLERATION 193 ing from the point of view of an alleged better society, not from the point of view of the mere selfish violator of existing institutions. When we have to deal with works of art, it is more difficult to apply this test of sincerity — the possession of an ideal sys- tem ; for the artist as such does not work in a medium of general conceptions, nor has his work any direct social aim. Where a work of art (a book or picture) seems to the average person grossly indecent, the artist is bound to prove that his work involves real, thorough, earnest labour. The test of ear- nest, hard work may be suggested as a help towards distin- guishing the serious artist from the manufacturer of mere indecencies ; it is one form of the general ethical test of co- herence. The virtue of industry, of honest work, may go along with many defects, but cannot go along with mere reck- lessness and absence of all sense of responsibility. We may lay down general precepts which seem to us per- fectly unexceptionable, and we may expect to escape the mis- takes of our predecessors and not to be found persecuting those whom a later age will venerate or at least excuse : neverthe- less, we may be certain that similar mistakes will be made again and again. Every new idea with regard to matters of religion, or matters of morality, must offend a great mass of prevalent opinion, and must struggle for existence among the ideas already in possession of the ground. This is inevitable ; and it need not be a matter of regret. A great many new ideas are not true or valuable, and it is well that they should not survive. A general willingness to take up every idea, simply because it is new, is not a healthy sign either of a society or of an individual mind. On the other hand, the society which re- jects every new idea condemns itself to stagnation and decay. The safest principle is that the fight between ideas should be carried on as fairly, and with as much courtesy as possible. To silence an opponent by burning him, or even by burning his books, is a brutal kind of argument ; but if you really think his ideas nonsense, and mischievous nonsense, there is no reason for hesitating to say so. To go on, however, to suggest that he is an immoral person, or that his motives (about which you know nothiugj in ])ublishing his opinions are bad motives, is to overstep the limits of decent controversy. On the other hand, ridicule is a fair weapon on the whole, and is a great improvement on the Inquisition or the censorship. N. R. O 194 TOLERATION [ch. viii There is, too, an obvious difference — analogous to that ah'eady referred to — between tolerating the publication of books which you (whoever the " you " may be) may think injurious to religion and morality, and tolerating the thrusting of these books in a cheap f^rm under the notice of j^oung and inexperienced persons. If a firm of booksellers or the mana- gers of a circulating library " boj^cott " a certain class of books, it is perfectly legitimate to ridicule their conduct, and try to show the inconsistency of countenancing the works of X, while refusing to supply the works of Y and Z ; but the only way to make the purveyors of innocuous litera- ture alter their conduct is to alter the opinions of the great reading public ; and then the amateur censorship of the press, exercised by Messrs. Blank and Company, will be sure to alter its character. If we ask the great reading public, who are the clients of Messrs. Blank and Company, to abstain from prohibiting our books altogether, we must not complain if the private and unofficial " boycott " is substituted for the public censorship. "We must tolerate, in our turn, what we think the pig-headedness of the great reading public. The case is different Avhen books are bought, as in a rate-supported library, out of money to which the whole community contri- butes ; it is then fair to demand that any book likely to be desired by a sufficient number of readers shall be supplied. But here, in disputed cases, the only fair resort is to a. poll, and the decision of the majority must be accepted as final — " until the times do alter." No one, not even if he considers himself sent direct from heaven to preach a new gospel, can claim any political or social right to thrust his notions upon people against their wish — he may consider it a moral duty to do so, but he must be prepared to face the odium of society. It would be unreasonable to demand a law compelling Mrs. Grundy to leave her card on every apostle of every "new spirit" : and the apostle would probably not benefit by such a law in the long run. The initiator must be prepared to fight his way to recognition ; his ideas may be destructive to the society he addresses, and need he be astonished if that society is reluc- tant to hear him ? Leave him alone, according to Gamaliel's wise precept of tolerance ; neither give the foolish fanatic the undeserved honour of martyrdom, nor raise dangerous obstacles to the peaceable transition of society from one stage A CH. viii] TOLERATION 195 to another. Such tolerance implies a belief in the ultimate rationality of that struggle between institutions and ideas which makes the most interesting part of the world's histor}' ; but, as I have already pointed out, it is a tolerance only likely to be felt and allowed by those who consider themselves fairly secure in their position, and who do not fear a violent over- throw. One of the lessons of experience is that toleration itself offers a safety-valve, and prevents explosions. There must be variety of ideas for the selecting process to work upon ; but in the evolution of ideas and institutions, the less the lives and welfare of individual human beings are sacrificed, the higher is the type of evolution.^ ^ Since writing the above, I see that, in the International Journal of Ethics for April, 1894, Mr. J. C. Smith, criticising an essay of mine on " The Eights of Minorities " (republished in Darivin and Hegel, etc.), so completely misunderstands my position as to say that I have been "exactly anticipated by that arch-Tory, Dr. Johnson: 'In short, sir, I have got no farther than this; every man has aright to utter what he thinks truth, and every other man has a right to knock him down for it. Martyrdom is the test.' " Now, if natural rights mean merely tliose "rights "that exist independently of and prior to organised society, it is quite true that such a mere struggle for existence is all that we should find. But if, as I have been urging throughout, natural rights mean, as thej- have always practically meant to political and social reformers (amid whatever confusions of thought and language), those rights which a well-regulated State ought to secure to its citizens, then what I contend is, that every man ought to have a right secured to him to utter what he thinks truth, provided that he do so with sutficient decency of language, and in a manner not calculated to provoke a breach of the peace ; and that, whether he observes these conditions or not, no other man shall be permitted to knock him down for it. If he is punished for indecency or for inciting to violence, it must be hy duly constituted authority. P^ven the Anarchist, caught in the act of depositing his infernal machine, must in a well-regulated State be protected by the police against lyncliing on his way to prison or the scaifold. ''The all-important right of minorities," I have said more than once, " is the right to turn themselves into majorities if they can." This principle has been thought to savour of intolerance, simply because my critics have not realised how very miich that right implies. It means, at least, "freedom of the press, freedom of associations, freedom of public meeting." Mr. Smith thinks these things are given "wherever there is a fairly representative govern- ment and a sound public opinion." AVell, I do not know how much he is prepared to understand by "a sound public opinion"; there must be a public o\-)\mon faiiourable to tolerance. Representative government, re- publican institutions, nay, even accumulated Declarations of the IMghts of Man and constitutional guarantees of liberty, are not always sullicicnt to secure this so modest right of a minority that 1 plead for. As I show 196 TOLERATION [ch. viii When we turn from the more specially political to the more specially ethical aspects of toleration, the matter to be considered is not the right of freedom of thought, but the duty of exercising private judgment. The most important question that can be discussed in connection with this duty is the proper attitude of the individual to authority. It is often absurdly alleged that authority in matters of opinion is an antiquated principle, for which the modern democratic spirit can have no further reverence. The man who claims to discard all authority, and to judge everything for himself, if he is quite in earnest, must avoid receiving any education, must avoid even learning a language ; and such an one will not be likely to express, or even to form, any opinion of his own whatever. The rejection of authority should, to a reasonable being, who is a social being, mean nothing more than the rejection of authority which refuses to submit to anj'' tests that carefully trained human reason can apply. That the person who accepts any one's authority on any subject should himself be able to test the worth of the authority is a perfectly unreasonable demand. I maj^ accept as accurate the result of a chemical analysis, without myself knowing any- thing about chemistry ; but I may be reasonably suspicious of a person's statement of the value of a food or a medicine, if the person who recommends it refuses to submit it to the analysis of experts at all. I may use a table of logarithms for purposes of calculation without thinking it necessary to test the accuracy with which it has been constructed, but I should have my suspicions of its value aroused, if it were made a penal offence to say anything disrespectful about the manner in which the book had been compiled. in Note, B at the end of this chapter, the United States refuse this right to the Mormon community. Whether their action is justifiable or not, on grounds of urgent public safety, I am not prepared to discuss fully : I am not sufficiently acquainted with the particular facts. But their action is certainly inconsistent with this right of minorities, and with the loudly proclaimed right of religious liberty. What I do strongly hold, however, is that minorities have no "natural right," I mean no reasonable claim, to have their views enforced on other people, and their actions in violation of the law of the land (in countries with a fair representative system) safeguarded against legal penalties. But just because of these necessities of public order, the right of striving by peaceable means of persuasion to get the law altered must be the more carefully protected. m CH. VI 1 1] TOLERATION 197 Authority in matters of conduct depends on rather more complex considerations than in either of these cases. The cohesion of a society requires in many cases an implicit obedience to commands, though it may no longer require an implicit acceptance of statements about matters of fact. I cannot be allowed, if anarchy is to be avoided, the same license in deciding whether I shall obey a law or not, that I am allowed in expressing an opinion about its justice or expediency. If I am seriously convinced that it is wrong for me to obey the law, it may become my duty to rebel — but it is then also my duty to take the consequences. But this raises a question to which I have to come later — the alleged natural right of resistance. In the meantime it is enough to point out the serious responsibility undertaken by any one who denies the generally accepted principles of right and wrong ; he is morally bound to show that the principles he proposes to sub- stitute are workable and compatible with human well-being. But it is a fair demand that the accepted principles shall be capable of justification on some other grounds except their antiquity. The individual may not say : " I have a right to disobey every law and maxim of conduct of whose worth I am not personally convinced " — that is anarchy, which is the reductio ad absurdum of any principle of conduct. He may say : " I have a right to discuss in a serious manner, and be- fore an audience that will not be excited to violence by what I say, the justice of this law or this maxim of conduct." That is the toleration which every sufficiently stable and yet pro- gressive society ought to grant. And such toleration imposes on the critic a greater responsibility than can reasonably be demanded of the hunted victim of despotic power. We ex- pect an Englishman to be more sober in his attacks on the institutions of his country than we can expect a Russian exile to be in criticising the authority of the Czar. We excuse a great deal in Voltaire which we should not excuse in a modern free-thinker. We should not be astonished if the man whose soberest criticisms are met by imprisonment or banishment becomes bitter, and turns savagely on his enemies. But neither should we be astonished that any society is apt to be provoked into anger by abusive criticisms of its most cherished institutions. The assailants of time-honoured usages are apt to say of society : — 19S TOLERATION [ch. viii " Get animal est tres mechant, Quand on I'attaque, il se defend," wliicli may be Englished roughly thus : — "This animal is very wicked, It turns and figlits when it is kicked." Struggle is inevitable ; it rests with us whether it is a brutal or a civilised warfare — a contest of reason on both sides, or a contest of rant on the one side and of cruelty and cant on the other, NOTE A. RELIGIOUS PERSECUTION AND TOLERATION: SOME HISTORICAL ILLUSTRATIONS. Hallam, in liis Constitutional History^ is justly indignant with such a passage as this of Southey's (from the Book of the Churchy II p. 285): "That Church [viz., the Church of England] and the queen [Elizabeth], its re-founder, are clear of persecution as regarding the Catholics. No church, no sect, no individual even, had yet professed the principle of toleration." Hallam points out that the second of these sentences certainly does not help to prove the first of them ; and that, as regards individuals, the statement is false. Sir Thomas More, in his Utopia, professed a principle of toleration wider even than that of Locke. The dogmas of the " civil religion " of Utopia are only two — a Divine providence and the immortality of the soul, with future rewards and punishments ; but those who deny these doctrines, though excluded from all public offices (as at the present day in the law-abiding State of Arkansas), are put to no punishment, and are not banished, as they wonld be according to Rousseau's " civil religion." In his views on religion, as in several other matters, this Roman Catholic martyr for conscience' sake goes far beyond what many of the champions of religious liberty have dared to dream of. While Hallam is right in saying that we cannot acquit Elizabeth's governm^ent of persecution, I think he does not do full justice to the significance of the contention made by Burleigh: that no one had been put to death in Elizabeth's reign for religion, but only for treason. Admit that the interpretation given to treason makes this defence a hypocritical one, is it not significant of a change of sentiment that Burleigh adopts it ? It is the homage paid to a new principle. The pamphlet called The Executive of Justice in England for Maintenance of Public and Christian Peace, published in 1583, and ascribed, with every probability, to Lord Burleigh, is included in The Soniers Tracts (ed. Scott, I. p. 189 scq.). The giving up of the punishment of death for heresy as such is indeed only a small step in the direction of religious toleration. In another pamphlet of CH. viii] TOLERATION 199 1583, .4 Declaration of the favourable dealing of her Majesty's Com- missioners aj^pointed for the Examination of certain Traitors, and for the Tortures unjustly reported to he done upon them for matters of Religion {Somers Tracts, I, p, 209 seq.), Burleigh asserts that those who applied the rack were specially charged to use it " in so charitable a manner as such a thing might be." It is remarkable, as Hallain points out, that in this same year Burleigh addressed a memorial to the Queen in favour of a lax enforcement of the oath of supremacy on Papists. To pass very stringent laws in order to satisfy the fanatics, and then to allow them to be administered laxly, was a favourite device of statesmen in those days, and is not quite unknown in ours. I have heard an American citizen saying with reference to Prohibitory Liquor Laws (with what amount of exaggera- tion I cannot judge), " In this country we make laws, but we don't keep them. We pass a strict law about the sale of liquor — that pleases the Prohibitionists ; but you can always get a drink, if you know how." ^ It seems to have been much the same with laws against the Papists : it was one thing to pass a stringent law to satisfy the more vehement Protestants, it was another to enforce it rigidly against loyal country gentlemen in the northern counties, where, out of a scanty population, a large proportion were Catholic in sympathies. As to priests, and especially Jesuits — that was another thing. In this Memorial of Burleigh's {So7ners Tracts, I. p. 164 seq.), it is noticeable how he argues the inefficacy of persecution from experience. " Putting to death," he says, " doth no ways lessen them, since we find by experience that it worketh no such effect, but like Hydra's heads, upon cutting off one, seven grow wp, persecu- tion being accounted as the badge of the Church ; and therefore they should never have the honour to take any pretence of martyrdom in England, where the fulness of blood and greatness of heart is such, that they will even for shameful things go bravely to death — much more when they think themselves to climb heaven ; and this vice of obstinacy seems to the common people a Divine constancy : so that, for my part, I wish no lessening of their number, but by preaching and by education of the younger, under good school- masters " — i.e., he proposes to deprive Papists of the control of the education of their children, these children to serve as hostages for their parents' fidelity. In the same Memorial, he advises also against driving out of the Church " the preciser sort " {i.e. the Puritans), with whom he had no particular sympathy. Hallam distinguishes five stages or degrees in resti-aint on religious liberty. Here is the persecutor's ladder, as one might call it: — ^ Tlie statement seems, on the whole, to be borne out by Mr. Fansliawe ill his Report (for Mr. Eathbone) on Liquor Legislation in the United States and Canada (Cassell & Co. 1893). 200 TOLERATION [ch. viii (1) The requisition of a test of conformity to the established religion as a condition of exercising offices of civil trust. (2) Restraint of the free promulgation of opinions, especially through the press. (3) Pro- hibition of the open exercise of religious worship. (4) Prohibition of even private acts of devotion or private expression of opinion. (5) Enforcement by legal penalties of conformity to the Established Church, or an abjuration of heterodox tenets. " The statutes of Elizabeth's reign," he adds, " comprehend every one of these pro- gressive stages of restraint and persecution." In the "Declaration of Breda" (1(360), Charles II. declares "a liberty to tender consciences, and that no man shall be disquieted or called in question for differences of opinion in matter of religion, tchich do not disturb the })cace of the kingdom ; and that we shall be ready to consent to such an Act of Parliament, as upon mature deliberation shall be offered to us, for the full granting that in- dulgence " (Gardiner, Const. Doc, p. 352;. We have here the express recognition, in words at least, of what may be called the non- mediseval principle of interfering with religious liberty solely on political or social grounds. The Parliaments of Charles 11. were sufficiently intolerant, but then the words "disturb the peace of the kingdom " may be interpreted in such a way as to justify severe restraints on dissenters. The Instrument of Government (1G53) limits the toleration it con- cedes to " such as profess faith in God by Jesus Christ," and not only by consideration of the public peace ; it also expressly excludes Popery and Prelacy, so that although it implies the giving up of the attem^Dt to enforce uniformity of doctrine and worship, it still main- tains the duty of excluding certain kinds of religion, as such. On this matter the Instrument of Government, in the main, carries out the provisions of the Agreement of the People (originally drawn up by the army in 1647-8), except that the latter leaves the toleration of Popery and Prelacy so far an open question, i.e. a question for Parliament to deal with. " It is not intended to be hereby provided that this liberty shall necessarily' extend to Popery or Prelacy." The constitutional Bill of the first Parliament of the Protectorate (Gardiner, p. 353 seq.) only provides " that without the consent of the Lord Protector and Parliament, no law or statute be made for the restraining of such tender consciences as shall differ in doctrine, worship, or discipline from the public profession aforesaid, and shall not abuse their liberty to the civil injury of others or the disturbance of the public peace." Bills, however, were without the Protector's consent to become law which restrained "damnable heresies." What are damnable heresies, however, was to be agi'eed on by Protector and Parliament. This scheme is obviously very far away from what we generally understand by the principle of religious liberty. CH. VI 1 1] TOLERATION 201 If Sir Thomas More in his Utopia deserves to be accorinted the first theoretical advocate of religions toleration, Roger Williams, the founder of Providence (afterwards incorporated in Rhode Island), is the first person in modern times who actually succeeded in establish- ing a community on a basis of liberty of conscience (1(J3G) ; and for a long time the colony seemed to its more orderly but intolerant neighbours, Massachusetts and Connecticut, to be a shocking example of anarchy and confusion. But time justified the bold experiment, and Charles II. in 1G63 granted a charter to Rhode Island, which remained its written constitution until 1842, and which conceded a religious liberty such as few could have dared to ask for or to grant in Grreat Britain in the seventeenth century. This religious liberty was granted expressly on the ground that Rhode Island was too remote to make any breach of " the unity and uniformity established in this nation." Mary Pisher, the Quakeress, who was imprisoned in Boston and half-starved for preaching blasphemous and devilish doctrines, five years afterwards " went to Adrianople and tried to convert tlie Grrand Turk, who ti^eated her with grave courtesy and allowed her to prophesy unmolested. [Did he understand her?] This is one of the numerous incidents that, on a superficial view of history, might be cited in support of the opinion that there has been on the whole more tolerance in the Mussulman thaii in the Christian world. Rightly interpreted, however, the fact has no such implication. In Massa- chusetts the preaching of Quaker doctrines might (and did) lead to a revolution ; in Turkey it was as harmless as the barking of dogs. Grovernor Endicott was afraid of Mary Fisher ; Mahomet III. was not" (Fiske, The Beginnings of New England^ pp. 183, 184). Roger Williams, in tolerating the Quakers, proved that he adopted toleration — " soul liberty " — as a principle and not merely as a policy : for he never concealed his antipathy to their doctrines. He wrote not only The Bloody Tenent, but George Fox digged out of his Burroios. It may be noted that Williams's saying that " A soul or spiritual rape is more abominable in Grod's eye than to force and ravish the bodies of all the women in the world " {Bloody Tenent, 1644, p. 94) had been anticipated by the Baptist Busher {/icligion''s Peace, 1614): "Persecution for religion is to force the conscience. . . . And herein the bishops commit a greater sin than if they force the bodies of women and maids against their wills " (Hanserd Knollys Society's Tracts on Liberty of Conscience, 1614-1661, p. 34). But Williams had to put his principles to the test iu the difficult task of organising a turbulent community. It is true he believed that toleration would lead the sect of Quakers to dwindle. " They are likely to gain more followers by the conceit of their patient suiforings than by consent to their pernicious sayings." Roger Williams's famous book is entitled. The Bloudy Tencnt of 202 TOLERATION [ch. viii Persecution for cause of Conscience, discussed in a Conference beticeene Truth and Peace, icho, in all tender Affection, jjresent to the High Court of Parliament (as the residt of their Discourse) these (amongst other Passages) of highest consideration (London: 1644). A reply to Williams's book was made in The Bloudy Tenent icashed and made white in the blond of the Lanibe : being discussed and dis- charged of bloud-guiltiness by just Defence, etc. Whereunto is added a Reply to Mr. Williams^s Answer to Mr. Cotton's Letter. By John Cotton, Batcheloi- in Divinity, and Teacher of the Church of Christ at Boston in New-England (London: 1647). To this a rejoinder was published by Williams : The Bloody Tenent yet more Bloody by Mr. Cotton''s endevour to wash it ichite in the Blood of the Lambe ; of ^chose j^i'ccious Blood, spilt in the Blood of his Servants, and of the Blood of Millions spilt in former and later Wars for Conscience sake, that most Bloody Tenent of Persecution for cause of Con- science upon a second Tryal is found now more apparently and more notoriously guilty. By R. Williams of Providence in New- England (London : 1652). From this last work it is worth quoting, in explanation of this quaint title, and for its own sake, the eloqiient concluding passage. It comes at the end of "An Appendix" addressed "to the clergy of the fo;ir great parties, professing the name of Christ Jesus, in England [the head-line inserts " Old and New " before England], Scotland, and Ireland, viz., the Popish, Prelatical, Presbyterian, and Independent": — "You know it is the Spirit of Love from Christ Jesus, that turns our feet from the traditions of Fathers, etc., that sets the heart and tongue and pen and hands too (as Paul's) day and night to work rather than the progress and puritj' and simplicity of the crown of Christ Jesus should be debased or hindered. This Spirit will cause you leave (with joy) benefices and bishoprics, worlds and lives, for His sake, the heights and depths, lengths and breadths of whose love you know doth infinitely pass your most knowing com- prehensions and imaginations. There is but little of this Spirit extant — I fear will not be until we see Christ Jesus slain in the slaughter of the witnesses : then Joseph will go boldly unto Pilate for the slaughtered body of most precious Saviour, and Nicodemus will go by day to buy and bestow his sweetest spices on his infinitely sweeter soul's beloved." NOTE B. MEASURES FOR SUPPRESSING MORMONISM IN THE UNITED S'^ATES, It is worth while, in connection with this subject of religious liberty and liberty of opinion, to call attention to the treatment of the Mormons by the Grovernment of the United States, for two reasons especially. In the first place, this is a test case of the extent to CH. viii] TOLERATION 203 which "religious liberty" is really secured to individuals in a country whose constitution is supposed to be strictly limited by the recognition of certain indefeasible natural rights, which Government should protect, but with which it should not interfere. ^ The amount of sympathy, with which the action of the United States Government in its endeavour to suppress Mormonism is regarded in America and in Europe, serves also as a measure of the extent to which people really believe in " religious liberty." Secondly, the action of the United States Government, and the sympathy with which it has been regarded in this matter, help one to realise more accurately the spirit m which Catholics have persecuted Protestants, and Protestants Catholics. Some study of the Mormon question is an important discipline and training for the exercise of the historical spirit in our judgments about the past. You abhor polygamy, you think it a degrading and detestable institution, and the religion of the "Latter Day Saints " which supports it (or did support it) 3'ou look on as a tissue of delusions and lies. Transfer these sentiments of yours to the mind of a sincere Protestant of the sixteenth or seventeenth centuries, and you will understand the way in which he regarded toleration of " the idolatrous sacrifice of the mass." You, the en- lightened, tolerant, modern Protestant, cannot understand, perhaps, the attitude of the Roman Catholic clergy of the present day to the question of divorce, or the attitude of the bulk of the Anglican clergy to the " Deceased Wife's Sister Bill." On what general grounds of respect for individual liberty is there any difference between your attitude and theirs? They abhor and, if they could, would prevent what injures the institution of the family, as they understand the family, and what violates the principles of religion, as they understand religion. You understand the institution of the family and the principles of religion differently from them, and differently from the " Latter Day Saints." The difference is a difference in private judgment ; and yet in virtue of an opinion not supported by any infallible court of appeal you interfere with the religious liberty of others; for if " religious liberty " has any mean- ing, the "religion" must depend on the judgment of the person claiming the liberty, and not on that of the person conceding it. People may glory in not allowing their Government to interfere in matters of religion; but, however much they may disestablish all Churches, they must either concede to their Government the right of ' As I have pointed out, the Declarations of Rights ajipcar in State Constitutions, but the first amendment to the U.S. Constitution lays down that " Congress sliall make no law respecting an establisliment of re- ligion, or prohibiting the free exercise thereof ; or abridging the freedom of speecli, or of the press, etc." This is the constitutional guarantee of tiie liberties of citizens of the U.S. living in Territories, and is generally understood as a guarantee of " religious liberty." 204 TOLERATION [ch. viii deciding what arc matters of religion, or they must bow to the de- cision of some Chnrch or combination of Churches. By no possible declaration of rights, or constitutional safeguards, can you absolutely distinguish Church and State, the spiritual and the temporal power, for in the last resort cither Church or State must determine the pro- vinces of each. Now let us admit, not merely that polygamy is a morally defective form of the family, but that its suppression by law is a desirable end, and that the fact of polygamy being practised under the sanction of religion, so far from making it advisable to leave polygamy alone, makes it all the more important to suppress an institution which is more likely to endure and to spread because supported by belief in a religion — however absurd that religion may seem to the majority of persons in the country. How can such suppression of polygamy be reconciled with the maintenance of religious liberty ? I think no objection can be taken to the decision of the Supreme Court of the United States in the case of Eeynolds v. U. S., that " Congress was deprived by the Constitution of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties and subversive of good order." Who decides, however, what "actions are in violation of social duties and subversive of good order " ? The legislature itself, — which means in the last resort the average public opinion of the community, or rather the opinion of those persons who manage to make their will effective at election time. Suppose a strongly Protestant majority united in political sentiment, living alongside of a Roman Catholic minority, whose votes are not an object of importance, as they would be were the majority divided amongst themselves ; suppose a great antagonism to the Confessional among the Protestant majority and among a con- siderable number of husbands of Roman Catholic wives, might not the Confessional be prohibited on the ground that it was " in violation of social duties and subversive of good order"? Would such a law be an infringement of the right of religious liberty ? Undoubtedly penitents and priests would have to choose between risking their eternal welfare (as they believe) and breaking the law of the land. Yet, from the point of view of many a legislator, the practice of confession might be regarded as interfering with the duties of family life (as he understands them) in the same sort of way that polygamy seems to do from the point of view of other legislators. A series of laws passed by Congress between 1862 and 1887 have, with continually increasing severity, sought to stamp out polygamy in the Territories. Lest an ordinary law against bigamy should be insufficient, the Edmunds Law of 1882 makes " cohabitation with more than one woman " a crime. To the European who believes in religious liberty, or in what is otherwise described as the secularisa- tion of politics, it must seem astonishing that, in its endeavours to CH. viii] TOLERATION 205 discourage polygamy, Congress should commit such a direct infringe- ment of religious liberty as is implied in this revival of Puritan methods of dealing with the voluntar}'- relations of the sexes among adults, punishing " sins " as "crimes." If in any American State the Roman Catholic population obtained the control of the legislature, they might punish as " criminals " persons legally divorced (in other States) who had married again, or persons who had contracted mixed marriages, with no more disrespect to the natural rights of liberty, etc., than that with which the United States Government has made adultery a crime in Utah. Congress has chosen to proceed on what may be called mediaeval principles of legislation, eriforcing by penal laws certain prohibitions of the Christian Church (though not others). The Supreme Court, in defending a piece of legislation of which I have still to speak, lays down that " the primitive power of Govern- ment for acts recognised by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, cannot be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance." It is to be noticed that the appeal is not made, as by the fathers of the Constitution, to the law of nature or the consent of the human race, but, as it might have been made by any of the " persecuting " governments of earlier days, to " the consent of the Christian world in modern times " {I.e. at present). The Christian world, certainly up to the end of the seven- teenth century, with trivial exceptions, agreed that " heresy " ought to be suppressed or at least discouraged by law, though different parts of the Christian world had (fortunately for the cause of liberty) different definitions of heresy. The American Supreme Court are using the very arguments which Lord Burleigh or Archbishop Laud might have used. You make saying mass a crime, or you make attending a "conventicle" a crime, and then you say, "No one's religion shall excuse him from committing a crime against the law of the land." The method is simple ; but is this " religious liberty " ? "But," it will be answered, "the Supremo Court refers only to the general consent of the Christian world in modern times. The Christian world has come to the opinion that it is wrong to punish for error in doctrine [Strict Roman Catholics have not come to that opinion, but only to the opinion that it is sometimes impossible and sometimes unsafe or inexpedient to do so]. We differ too much about doctrines, but about morality all Christians are agreed." Are they ? How about divorce ? What is the standard of " Christian " ethics ? Is it the opinion of a Church which claims infallibility, or is it " the Scriptures " to which Protestants appeal ? If the former, how can you sanction divorce ? If Christian ethics are to be decided by the Bible, and the Bible only, it seems specially unreasonable to pro- hibit polygamy, which is sanctioned by the example of men after God's own heart in the Old Testament, and is nowhere forbidden in 2o6 TOLERATION [ch. viii the New Testament, except in the case of Bishops. ^ But " the general consent of the Christian world in modern times," it will be explained, *' means the opinion of Catholics and Protestants on those matters of morality on which they are agreed; the appeal is made to the actual practice of countries in which Christianity is the pre- dominant religion, though in matters of legislation compromises between Catholics and Protestants are adopted." Do Great Britain, France, Germany, Austria, Italy, in all of which Christian Churches are "established," form a pnrt of the Christian world as well as the United States of America, in which, professedly in the interests of " religious liberty," there is no established Church ? In none of these countries is adultery nowadays punished as a crime ^ in the strict sense of the term — a wrong against the State, to be detected and punished like theft or murder, quite apart from any initiative of aggrieved individuals. The tendency of " modern " legislation has been to give up the attempt to enforce by penal sanctions (I am r.ot referring to civil remedies) the code of Christian ethics in regard to sexual morality on adult persons acting voluntarily, and not " con- trary to nature." It is a new thing that the United States of America should be ambitious of being more mediaeval than the benighted coun- tries of the old world. Are modern legislators, who profess a belief in natural rights, and who accept the standard of general happiness as the test of good legislation, prepared at the bidding of a union of sects to enact laws which cannot really be enforced without the introduction of a spy-system that would be far more injurious to the morality of social life than the laxity such Puritanical laws are intended to cure ? Such laws, one is inclined to suspect, are not intended to be generally enforced, but are passed (like some liquor laws) to catch a certain number of votes, and to be used as a weapon of attack against obnoxious groups, when convenient. Now, what seems to take away excuse from the Congress and the Supreme Court of the United States is, that it would have been quite possible to fight polygamy on the principles which regulate " modern " legislation in most Eui'opean countries. The following programme is what would probably suggest itself to the secularised politicians of those European countries which have accepted the principles of '89 : First^ to recognise no marriage as legally binding except a civil marriage. Secondly, to prohibit bigamous or polygamous civil mar- ' 1 Tim. iii. 2. If the prohibition be of second marriages, this prohi- bition, binding on jn'ieats of the '' Orthodox " Church, has not been enforced on the laity by the legislature in anj' Christian country. Theologians quote various texts from which they infer a prohibition of poh-gamy ; and some theologians have great powers of inference. They could more easily find texts deterring from marriage altogether than from polygamous marriage. Monogamy has come to us as a Eoman, not as a distinctively Christian, institution. CH. viii] TOLERATION 207 riages — with proper exceptions, of course, for persons legally divorced. Thirdly^ to make adultery a ground for divorce, in the case of both sexes equally, Fourthly^ in order to meet the special case of the Mormons, who do not allow a second " marriage " unless the first wife consents, it might be necessary to set a limit to the period of time during which '' condonation " or " connivance " is a bar to di- vorce, so as to allow the legal wife, who repents of a consent, given perhaps under the influence of religious enthusiasm or religious ter- rorism, full means of escaping from a polygamous husband if she wishes. Lastly^ instead oiabolishiny female suffrage in the Territory of Utah, as was done by the Edmunds-Tucker Law of 1887,^ it would have seemed more in accordance with a sincere belief that pol3'gamy was a system of slavery in which women were kept against their will, to have retained female suffrage while ensuring by stringent enact- ments the inviolable secrecy of the ballot. Such a series of measures would probably have been very unac- ceptable to the Mormon community ; but they would have been measures for crushing out polygamy without violating, as the existing measures seem to do to the observer from outside, the principle of religious liberty, so loudly pi'ofessed by the United States. If the devout Mormon were to choose, with the consent of his legal wife, to bind himself by religious ceremonies to support a number of other women for the term of their natural lives, and to put their children on the same footing as to inheritance with his lawful issue, that would doiibtless be an unusual manner of violating the duties of the family, and would present a remarkable contrast to the way in which men have been known to treat their wives and their mistresses in other parts of the world — and even of the United States — but it seems hardly so terrible a state of affairs as to call for criminal proceedings on the part of a strong government in a country the vast majority of whose inhabitants are not likely to become converts to the singular revelations of Saint Joseph Smith. The United States Grovernment has not even the excuse of reasonable fear, which may be pleaded for the persecution of Elizabeth's reign. Have the legislators of Congress so little faith in the superiority of monogamy that they can only fight polygamy by the methods which the Puritans used in New England against Catholics and Quakers ? But even supposing it were conceded that there is nothing incon- sistent with " religious liberty " in treating as criminal the plural or " celestial " marriages recognised as binding by a religious sect, the " persecution " of the Mormons does not end in the punishment of overt acts which are, or have for the special purpose been made, crimes by the law of the land. The Supreme Court of the United States has decided that it is not unconstitutional to impose on voters a test or abjuration oath, in which they have to swear that they do not ' Of. Bryce, American CommoniccaWi, III. p. 294. 2o8 TOLERATION [ch. viii belong to an assocktion which teaches polygamy as a religious duty.^ Such a test oath is imposed by the statutes of Idaho Territory ; that is to say, a person can be deprived of his political rights simply for belonging to a religious body which believes in the Tightness of certain conduct which the law of the land has made criminal. Lord Bui-leigh has been condemned as hypocritical because, while requir- ing an abjuration oath from Roman Catholics (which they could not conscientiously take) denying the papal supremacy in England, he yet declared that this was not religious persecution. And yet every Roman Catholic might reasonably be alleged to be a traitor so long as he acknowledged the power of the Pope to dispense Englishmen from their allegiance to Queen Elizabeth, and every Jesuit, during a cousidex-able period, might be reasonably alleged to belong to an association which taught the rightness and the duty even of assassi- nating " tyrants " who had been recognised as such by the Pope. Now no one can argue that polygamy, however detestable, is a political or social danger of the same kind as rebellion and assassina- tion ; and yet the merely belonging to an association that teaches or encourages the practice of polygamy as a religious duty renders a citizen of the United States in this Territory of Idaho liable to a loss of political rights. This kind of " persecution '' is indeed but the first step in the persecutors' ladder, which Hallam has described ; but, as I do not believe that even the Supreme Court of the United States is infallible, I cannot see how such a test oath is to be recon- ciled with the decision that " Congress was deprived by the Consti- tution of all legislative power over mere opinion" (Reynolds v. U.S.). I have said elsewhere that the most valuable right of a minority is the right to turn itself into a majority if it can : and I have found myself criticised on the ground that this concedes too much power to majorities. But the right of a minority to turn itself into a majority implies the right to free expression of opinion (within the limits of decency) and the right of association for the purpose of propagating opinion (limited by respect for the rights of others). So far as I under- stand the matter, compulsory vaccination is a most valuable measure, and it seems to me quite right that those who fail to have their children vaccinated should be subject to penalties : but that Anti-vaccinators should be deprived of their votes simply because they belong to an association which teaches and encourages its members to break the law of the land would be an excessive interference with the right of a minority to agitate in a constitutional way. I admit that the teaching or encouraging of such crimes as murder may be very properly punished, if it can be done ; but the punishment should be ' Davis V. Beason. Observe the individual himself need not have taught or encouraged the practice of polygamy. The Test is clearly in- tended to exclude the whole sect of Mormons an such. CH. VI if] toleration 209 a direct punishment of every individual teaching or encouraging the crime, and not the roundabout method of depriving every one of his vote who does not abjure the membership of Anarchist societies. Such test oaths, though the mildest, are one of the least expedient forms of persecution : they cause irritation without being effectual in doing anything else than making constitutional agitation difficult. They provoke hypocrisy and encourage perjury. It is possible, how- ever, that such legislation as the Edmunds-Tucker Law and the Idaho Test Oath may seem to be effectual (with the help of the Pacific railroad) in destroying those parts of Mormonism to which the majority of people in America object. But to the observer from without it does seem that the institutions objected to might have been attacked in a manner more compatible with the constitutional guarantee of religious liberty. Religious liberty may be thought a good thing or a bad thing; but it is a hypocritical pretence to say you concede religious liberty and yet insist that what ?/o?«. do not call "religion" is not religion, or that people who approve of what you disapprove of can- not possibly be sincere and conscientious. Religious liberty, whether a good thing or a bad thing, means something very different from a general disestablishment of Churches. N. R. CHAPTER IX THE RIGHTS OF PUBLIC MEETING AND ASSOCIATION I HAVE treated the subject of toleration and liberty of opinion at considerable length, as a convenient method of getting at some of the principles by which the rights of individuals must be determined. Other aspects of the alleged natural right of liberty may be treated more briefly. A general and unquali- fied liberty of action has never been claimed by any sane or reasonable person. The mere possibility of social existence in- volves some check upon the liberty of each individual ; and, although amiable anarchists may dream of a society in which every one would respect the claims of every one else, without any force, even in the remotest background, to guarantee those claims, and without any body of pei'sons expressly empowered to decide on the merits of rival claims and having the regulated force of the society to back up its decisions, it is clear to all those who have learnt anything from a study of history, or even from a slight reflection on human nature, that without some such available compulsion in the last resort no society can permanently hold together. The less that force needs to be used to compel order, the better on the whole is the condi- tion of the society ; but force is not useless in social matters simply because it does not always need to be used. There are certain particular liberties of action, which are often enumerated as distinct " rights " in popular language and in formal " Declarations." One of these is what we are accustomed to call " the right of public meeting." In the Declaration of Rights of 1793, " the right of assembling peace- ably " is mentioned along with the right of free expression of opinion. This right of assembling is not expressly named in the Declaration of 1789, but in the Constitution of 1791, Titre i., among the " natural and civil rights," the Constitution guarantees to the citizens " the liberty of assembling themselves peaceably and without arms, provided that they satisfy the CH. ixj PUBLIC MEETING AND ASSOCIATION 211 police laws " — limitations obviously capable of a very stringent interpretation. The Constitution for the year III. (1795) is, as might be expected, less favourable to the right of public meet- ing than that of 1793. In Titt'e xiv. § 365, it is laid down that " every armed mob {attroupement) is an attack on the con- stitution and ought to be immediately dispersed by force " ; while the following section provides " that every mob without arms should be equally dispersed, at first by w^ay of verbal command, and, if it is necessary, by the use (developpement) of armed force." I assume that the executive under this consti- tution reserves to itself the definition of what constitutes an " attroupementy The Belgian Constitution may be taken as a fair specimen of a more modern constitution, which expressly guarantees a right of public meeting under certain restrictions. Its nine- teenth article is as follows : " The Belgians have the right of assembling peaceably and without arms, on condition of con- forming to the laws which may regulate the exercise of this right, but without having to obtain previous permission. This rule does not apply to meetings in the open air, which remain entirely subjected to the police laws." ^ This provision in the Belgian Constitution was probablj' intended, as Professor Dicey suggests, to secure in the main the same liberty of public meeting, which by 1831 at least might be regarded as being recognised in this country. Perhaps we should rather say — which had come de facto to establish itself in this country ; for, while on the one hand our law makes no distinction between meetings indoors and meetings out of doors, there exists, by the law of the land, no such thing as a right of public meeting at all. "No better instance,"' says Professor Dicey, " can indeed be found of the way in which in England the constitution is built up upon individual rights than our rules as to public assemblies. The right of assembling is nothing more than the result of the view taken by the Courts as to individual liberty of person and in- ^ " Les Belyes ont le droit de s'asHembler jKiisiblement et sans annes, en se conformant aiix lois qui peuvent re(jler Vexercice de ce droit, sa)is neanvioins le soumettre a une autorisation prealable. Cette disposition ne s'applique point aux rassemblements en plei7i air, qui restent entierc- ment soumis aux lois de police." (Quoted by Dice}', Law of the Constitu- tion, Ed. 3, p. 254.) 212 THE RIGHTS OF [ch. ix dividual liberty of speech. There is no special law allowing A, B and C to meet together either in the open air or else- where for a lawful purpose, but the right of A to go where he pleases so that he does not commit a trespass, and to say what he likes to B, so that his talk is not libellous or seditious, the right of B to do the like, and the existence of the same rights of C, D, E and F, and so on ad infinitimi^ leads to the con- sequence that A, B, C, D and a thousand or ten thousand other persons may (as a general rule) meet together in any place where otherwise they each have a right to be for a lawful pur- pose and in a lawful manner." ^ Now to ordinary common sense a meeting of a thousand, or of two or three thousand, persons for a definite and common purpose is a different fact from an accidental walking and accidental talking of A, B, C, D, etc., as separate individuals. The individualist logic, which is taken for granted in our popular philosophy, may indeed look on even permanent societies as mere aggregates of the individuals who compose them, and think that the properties of the society can be arrived at by a summation of the properties of the individuals. But ordinary common sense, unsophisticated by popular philosophy (which is a xery different thing from ordinary common sense), can easily see the difference between even a temporary " meet- ing " and a mere addition of units. If any one were to say that he happened to be taking a walk in Hj'de Park one day, and that several hundreds of people all happened to be taking a walk four-abreast in the same direction, and that when they came to a certain spot, where there happened to be a platform, first one person, then another, and then more stood up on the platform, and they all happened to make some remarks, in rather a loud voice, to the other people, and they all happened to make remarks of much the same kind and about much the same subject — we should probably regard such a narrative as a feeble attempt at humour.^ But this abstract view of the facts has sufficed hitherto for English lawyers. No doubt in this, as in other matters, it has been advanta- geous for the growth of democracy in England, that the ' Law of the Constitution, Ed. 3, p. 255. " A great deal of humour, especially the humour of the professional humourist, consists in abstracting certain aspects of events from their context, just as caricature in drawing consists in taking certain features CH. ix] PUBLIC MEETING AND ASSOCIATION 213 rights of citizens as sucli were not laid down at too early a date ; but it may perhaps be questioned whether the interests of orderly progress are at present best served by this legal ignoring of political facts. On the one hand this habit of regarding a multitude as simply a sum of individuals helps to give countenance to the rather widely spread notion that there is a sort of unlimited right of making processions and hold- ing meetings. A may walk down this street as well as anybody else ; B may walk down this street as well as anybody else ; and so of C, D, E, etc. Therefore A + B + C + D + etc., may go in procession down this street, when it comes into their joint heads to do so, and the authorities who prevent the procession are interfering with a just and indefeasible right of free Eng- lishmen. In practice the organisers of processions generally recognise a reasonable limitation of their rights by giving suffi- cient notice of their intention to the police, and consulting with them about the route least likely to cause inconvenience to the rest of the community. But would there not be some gain in making the organisers of processions or meetings more definitely and legally responsible for their orderliness ? There would then be better security taken against the presence of those disorderly aud ruffianly followers, who have so often brought reasonable and peaceable "agitation" into undeserved discredit. There can obviously be no general right of going in processions or holding meetings at all times and in all places, even if proces- sion and meeting be quite orderly. Even those persons who do not want to make processions or to go to meetings have some " rights " in the public streets and open spaces. On the other hand, the great value of public meetings as expressions, though of a very vague and unsatisfactory kind, of the opinions of certain sections of the community, and still more their great value as safety-valves of feeling which becomes dangerous when pent up, make it very important that no unnecessary obstacles should be thrown in their way, and that no pretext should be given for the supposition that one set of opinions is favoured by the police authorities, while another set is and exaggerating tliem to the neglect of the otlicrs. Tliis " abstraction " might be illustrated b3^ the story of a man wlio was asked Iiow his father died, and answered, " He was engaged in serious conversation with a clergj'inan, when some boards in a platform gave wa^-, and he broke his jieck while falling through." 2 14 THE RIGHTS OF [ch. ix frowned on. Provided that incitements to violence are avoided and a certain decency of language observed, it is generally wise to allow any kind of views to be promulgated, and it would be well if every town and village had its public hall or, failing that, its open space, where all sorts of meetings might be held, provided of course that no one party be allowed to monopolise the use of public property. It is moreover a useful part of a citizen's education to be able to hear the most divergent opinions propounded without a breaking of heads, either by the mutual efforts of the audience or by the guard- ians of the public peace. The liberty of association may be regarded as a mere application of the right of public meeting ; an association of individuals for any special purpose may be thought of as a public meeting, which is never dissolved, but only adjourned. But an association means more than that ; for the body as a whole, by its constitution, comes to acquire definite " rights " over the individuals composing it, in a way to which a public meeting only approximates. An individual who attends a public meeting does indeed thereby become, to some extent, sub- ject to the control of the assemblage as a whole, or of its effective majority, or of those who can control the majority. His right of absolute freedom of speech and action is, for instance, limited far more than it would be were he not present at the meeting. If he makes certain remarks which he might, perhaps, have been allowed to make at his own fireside, or even while walk- ing along a public street, he may incur the risk of being put out of the meeting with necessary or superfluous force, every one recognising the " natural right " of public meetings to maintain such order and harmony as may be necessary for their existence as meetings for hearing speeches or discussions. But the control which an association exercises over the indi- viduals belonging to it is of a wider kind, and of a much more definite kind. As a rule, an individual in joining a more or less permanent association is told something, at least, of the laws and regulations of the association to which he thus be- comes subject ; membership of other associations than the State is generally supposed to be, and is certainly spoken of as if it were, " voluntary," whereas membership of the State is supposed to be " compulsory." The distinction, however, is CH. ix] PUBLIC MEETING AND ASSOCIATION 215 not quite so clear and rigid as is often thought. The obvious difference between the State and what is called a voluntary association is, that the State can exercise regulated force in inflicting penalties for disobedience to its commands, whereas a voluntary association is either restricted to the exercise of " moral compulsion," or can only enforce its penalties by mak- ing use of the legal machinery which the State itself provides. The distinction, as thus formulated, does on the whole exist between the modern State in all orderly societies, and the greater number of what are called voluntary associations. But the weak States of the middle ages had frequently very much less power of enforcing their commands than was possessed by the Church (which would now-a-days be called a " voluntary association," because it is not the State) in those daj^s when the supernatural and other-worldly penalties of the Church exer- cised a stronger influence over the mass of people, homogeneous in their beliefs, than the irregularly enforced penalties of the temporal power. At different times and in different places there has been a difference in value between hanging and damn- ing as penalties for the violation of commands or precepts ; though, as a rule, the Church, when exercising an effective control over consciences, has also been able and willing to use the secular arm to back up the ghostly terrors which are her own proper weapon. Even if we consider only those times in which the State is strong and can ensure the systematic enforce- ment of the penalties it threatens, it should be recognised that there is no absolute difference, so far as concerns the effect on the individual's motives, between the pressure of the State and the pressure of other associations. If disobedience to the commands of some powerful association means an effective ex- communication, or "boycott," or practical deprivation of the means of obtaining a living, the individual's free choice may be as much limited as by the knowledge that disobedience to the commands of the State will involve death or imprisonment. The fear of starvation for oneself and those dependent on one may be as strong a motive as the fear of the law of the land. Moreover, the belonging, or ceasing to belong, to a "voluntary" association may be as little voluntary as the belonging, or ceasing to belong, to a particular State. In the societies of the ancient world, it is true, citizenship came mostly by birth, and could only be obtained exceptionally, and as a special favour, 2i6 THE RIGHTS OF [ch. ix by an outsider. But in the modern world, to a considerable extent, citizenship depends on the will of the individual. Thus it is more easy for an able-bodied person, or a person with sutlicient personal property, to exchange a country and a nationality, that he finds disagreeable, for one more to his liking, than it is for a barrister or a doctor, who is dependent on his earnings, to violate the etiquette of his profession. Again, a great many persons are born into, or brought up into (if we may say so), a " voluntary " association, or are made to feel it necessary to join one. Most persons are " born " in this or that religious body, quite as much as they are born of this or that nationality. To belong to a trade-union may be an almost indispensable condition of obtaining a living by the occupation to which one has been brought up. It may need a strength of will and power of defying the opinion of one's neighbour, very much above the average, to refuse to pay certain " voluntary " subscriptions. This ultimate similarity between the State and other as- sociations is overlooked in that very naive proposal of certain " Individualists " to make taxation voluntary. I shall not discuss the spectacle of a First Lord of the Admiralty sending the hat round (a cocked hat, I suppose it would be — very soon, if not at the outset), with a polite request : " Your con- tributions are respectfully solicited for the maintenance of the British Navy." Of course such an idea is not necessarily absurd, though it belongs to a stage of society which in some matters has become unfamiliar to us. It is only custom that makes us see no incongruity in keeping up lighthouses at the public expense, while lifeboats are dependent on private sub- scriptions, or in keeping up poorhouses out of the rates, while hospitals are private charities ; in many such matters we pro- gress only by degrees from the voluntary, i.e. the haphazard, to the political, i.e. the more systematic method of meet- ing general needs. But let me leave the question of external defences out of sight. Suppose a model town on the voluntary system. Instead of a police force maintained out of the rates, we should have a private association maintained by voluntary subscriptions for the defence of person and property. Possibly some of the wealthier inhabitants might not care to join, but would provide their own staff of guards, and protect their houses or factories or shops in the good old fashion of the CH. ix] PUBLIC MEETING AND ASS0CL4TI0N 217 mediasval baron. Humbler persons would have to combine, as they could each only afford the expense of a fraction of a six-foot policeman. Now suppose that a certain citizen, in the full exercise of the freedom he enjoys under this reign of libert}^, refuses to subscribe to the defence-fund, his name would be conspicuously absent from the subscription list, and of this absence the burgling profession would keep itself in- formed. To most people subscriptions of this sort would only differ in name from rates and taxes, and might be even more troublesome and vexatious. The tax-gatherer is an unpopular person ; but the blackmailer would be a greater nuisance. The State differs from other associations in having the common good professedly as its end, and therefore — (1) in not being limited a priori to certain particular aspects of life,^ and (2) in including all the inhabitants (except resident aliens) of the national territory, in some sense or other, in its member- ship. If we hold that the liberty of individuals in any real and positive sense ^ is one of the principal objects which the State ought to secure, then it is indispensable that the State should claim the right of interfering, where necessary, with the actions of voluntary associations. To concede a general " liberty of association " is to turn the liberty of the individual into a mere empty and meaningless form. The progress of individual liberty, in any real and positive sense, has meant to a great extent the emancipation of the individual from the absolute control of various associations, natural and artificial, against which the individual in many cases needs to be pro- tected by the State. The family, the Church, the joint-stock company, the trade-union, the political club are all " associa- tions," whose " liberties " often conflict with those of one another, and with the liberty of individuals who are and who are not their members. The abolition of slavery, and the legislative protection of children and of wives, are interferences with " the family " as that used to be understood. If heads of households are no longer allowed the same control over other members of the household which they exercised when the * My meaning is that, prior to discussion and to an investigation of the teachings of experience, we must not assume (a) that the State ought only to concern itself with certain matters, nor (6) that it ought to concern itself with all ; for experience may show that some matters cannot con- veniently be dealt with by any State, or by this or that particular State. - See above, pp. 138, 139. 2i8 THE RIGHTS OF [ch. ix family was itself a little State — a State in germ — tlie in- dependence of the family has certainly been diminished, but in the interest of the liberty of individuals. Compulsory education, compulsory vaccination, compulsory notification of infectious diseases, etc., are infringements of the independence of the family, but in the interest of the liberty — the real, positive liberty — of the individuals who belong to the family, and of others. If an individual has a certain minimum of education and of protection from gross neglect and from infectious disease secured to him, he is to that extent more "free" to make what he can of his natural powers and of his opportunities, than if he is entirely at the mercy of ignorant parents, and of dirty, diseased, or fanatical neighbours. The " liberty of the Church " has in past times meant that churches, i.e. those in authority in them, have had a free hand to rule over individuals as they chose. Such liberties restrict the freedom of individuals in many ways, notably in respect of the free expression of opinion, and in respect of such matters as marriage and divorce. There is, however, an obvious differ- ence between " the liberty of the Church," i.e. the power of one great international organisation, whose system of ecclesias- tical discipline is supported here and there by the organised force of States, and the tolerated existence of what are called different denominations, i.e. religious associations which do not claim, or have been practically obliged to give up the claim, to dictate directly the policy of the State in any matter. Such associations may, of course, influence their own members and others to use their rights as citizens in such a way as to further the religious interests and the opinions of a particular sect in matters of education, of prohibition of work and amusement on certain days, and of various other legislative interferences with the liberties of individuals in the interests, or supposed interests, of morality ;^ but such political influence of religious * Those who argue against establislied cliurches on the ground that the Christian religion should never be supported bj^ the force of the State are guilty of inconsistency, if they support the prohibition, e.g. of trade or of theatrical performances on Sundays. Such prohibitions do mean the State-establishment of Puritanic Christianit}^, and are an infringement of the religious liberty of Jews, wlio observe their Sabbath without State-help, and likewise of all non-Sabbatarians, whether Christians or not. To provide by law that every one should have one lioliday in every seven, or any other number of, days, without specifying SA CH. ix] PUBLIC MEETING AND ASSOCIATION 219 bodies is of the same kind with the political influence of pro- fessedly political clubs, and of other associations for organising and controlling the votes of electors. I do not think it can be laid down absolutely that the State ought never in any way to interfere with " free churches," any more than that it ought never to interfere with political clubs or humanitarian societies. A charitable institution, for instance, might conceivably fill a district with semi-criminal, semi-lunatic paupers, to the injury of the community as a whole ; a so-called political club might become a gang of conspirators to promote assassination ; and a church might use an assumed power of inflicting supernatural penalties in such a way as dangerously to control the political and civil liberty of its members.^ No political society can safely recognise any absolute right of private association among its members ; for such private associations may conceivably grow into what are practically separate States waging war, from a vantage-ground, against the national existence. It is in this as in the general question of toleration : time, and place, and experience of the past must decide what is best to be done. "What will actually in any case be done will depend mainly on the extent to which those, who happen to exercise effective sovereignty, fear disturbance, or feel strong enough to concede the toleration of contempt, or confident enough in the general reasonableness of their fellow-citizens to recognise the edi>cative value of diverse associations for the promotion of different and conflicting kinds of restraints on individual liberty. The name " Free Church," as already indicated," is an inter- esting example of the ambiguities and contradictory suggestions the day, would be a different matter, and would be the onl3^ consistent course for those persons (probably very few in number) who really dis- approve of all State-establishment and State-enforcement of any religion whatever. The endowmeiit of churches is a separate question from tlie establishment of religion. But those who would take ancient endow- ments from churches, and use them for the support of schools, in which religious doctrines of any kind are taught, are using the power of the State to endow a certain kind of religion. ' To refuse to give legal recognition to religious vows {French Consti- tution of 1791) is to interfere with complete liberty of association, as well as indirectly with complete freedom of contract ; monks or nuns who repent of their vows will be protected against the associations to which they have bound themselves. ^ See above, p. 138. 2 20 THE RIGHTS OF [ch. ix ill the word "free." In its most famous liistorical use, as the official designation of the vigorous, militant, and in many ways heroic religious body which originated in the Scottish Ecclesi- astical Disruption of 1843, it represented a renewal of the same claim which is asserted in the phrase " liberty of the Church," — a claim to be supported by the State, without recognising any mutual obligation on the part of the ecclesiastical power to obey the State, except in those matters which the ecclesias- tical power itself decides to be the concern of the civil power. It represented a renewal of the claim of the older Puritans, not to be " tolerated," but to dictate directly to the State as to what might be tolerated, and what might not.^ Such proud assertions tend to become meaningless when they are made by a body which finds itself a minority of the population, and by a body, however important, of dissenters, dissenting from other dissenters. And so in course of time " free church," and even " Free " with a capital, may come to connote nothing more than absence of direct connection with the State. In French-speaking Protestant Switzerland, where there is a tendency to that multiplication of sects which is often sup- posed to be a special characteristic of the English-speaking peoples, there is a considerable religious body known as the "Free" Church. It "sprang," says Mr, Vincent, in his valuable work on i^tate and Federal Government in Switzer- land^ " from an endeavour to gain freedom from State inter- ference, and at the same time to maintain a stricter confession of faith. It was, in reality, a protest within the Protestant Church, and in Geneva and Vaud goes back to the time of the abolition of the Helvetic Confession. In Neuchatel it was a re- sult of the ecclesiastical law of 1873, which made every citizen, ipso facto^ a member of the Church, and abolished all theological tests for ministers." - In Neuchatel and Geneva the liberty of the conscience of the minister is declared inviolable by the constitution,^ and against this liberty the " Free " Church is a * HnW&m, Const. Hist. ^. 142 (" World Library " edition), has pointed out the striking resemblance between the demand of Cartwright, that the civil magistrate should, "as the prophet speaketh, lick the dust of the feet of the cliurch," and the ecclesiastical theory of Pope Gregory' \ll. The original position of the Scotch "Free Church" has been similaidy de- scribed by its critics as that of Protestant Ultramontanism (with an in- teresting oblivion of the original sense of the latter word). ^ 2 ii)ia.^ p. 176. 3 iii^i^ p_ 130. CH. ix] PUBLIC MEETING AND ASSOCIATION 221 protest. A similar dislike to the liberty of the conscience of the minister may, occasionally, be found as a motive in the making and continuance of " free " churches elsewhere than in Switzerland. Commercial companies have generally grown up to some extent under the protection of the State. Great trading or industrial enterprises, as a rule, require the interference of the State on their behalf, e.g. in order to enforce contracts, to secure protection in foreign countries, to obtain compulsory power of purchase of land, etc. ; and the State has thus an easy means of restricting the liberty of companies, in return for the advantages it confers on them. As has been generally recognised, there is a much stronger case for the State to inter- fere on behalf of employees with the " liberty " of companies on which it has conferred special privileges, than with the " liberty " of private individuals whose commercial or indus- trial enterprises are not aided by the State in any special way. The right of the State to regulate the hours of railway servants — apart from reasons of public safety — has been recognised by those who still feel doubtful about the expediency or justice of any general attempt to fix a maximum working-day by law. In protecting shareholders against fraud or culpable neglect on the part of directors and promoters, in protecting the general public against the tyranny of companies which have, whether by law or by the operation of economic causes, a monopoly in the supply of any particular commodity or service, and in bringing under more direct State-control, or even under immediate State management (I include administration by municipalities or other local bodies invested with power by the Central Government), enterprises which it has become sufficiently convenient for the State to undertake — in such ex- tensions of State control over joint-enterprises, for the sake of individual liberty, and in the interests of the general well- being, lies much work for political energy in the immediate future. Trade-Unions have fought their way through persecution to toleration. From an evil to be suppressed, they have become, in the eyes of politicians, a necessary evil, or even a beneficial institution. As benefit societies, as teachers of a spirit of co-operation, however limited and narrow, their value is generally admitted. Even as instruments of industrial war- 22 2 THE RIGHTS OF [ch. ix fare, their advantages are widely acknowledged; it is always easier to deal with an organised body of men than with an unorganised mass. Trade-unionism, still, means warfare ; but it is the civilised warfare of disciplined armies, not of irregulars, banditti, or savages. But what of the attitude of the militant Unionist towards the " free labourer " ? The State has the obvious duty of protecting even those whom the Unionist calls " blacklegs " against anything like physical compulsion on the part of the Unionist — by the use of military force where neces- sary. Unless or until Trade-Unions have become absorbed by government departments (in which case a strike would be punishable as a mutiny by military law), the Trade-Unionist can make no legitimate claim to use any weapon but persuasion against the non-Unionist ; and if it is in the public interest that some particular industry should be carried on, the State has the duty imposed upon it of protecting by all the necessary force those engaged in carrying on that industry against the interference of Unionist strikers. If the State cannot success- fully protect individuals against any Union or combination of Unions, regular government has broken down, and the country is at the mercy of a revolutionary usurpation, ruling by terrorism. In any given case, one may sympathise with the Unionist striker, or with the " blackleg " ; but, as I have said, so long as the Unions are not directly responsible to national control, the State as such is bound to be impartial. The as- sumption, too readily sanctioned even by some responsible statesmen, that military force is not justifiably used in repress- ino; cUsordei' is an unfortunate inheritance from the time when military force was freely used by despotical governments to prevent the free expression of opinion. Some Trade-Unionists seem to take for granted that because Trade-Unions have undoubtedly improved the conditions of life, and raised the standard of living among a large portion of the population, an extension of Unionism, and a greater sup- port of Unions in case of strikes by public opinion, constitute the true or, at least, the chief solution of our economic and social difficulties. There is this fatal objection to such an idea: — A Trade-Union must either include all the workers of a given trade, or only some ; and all the Trade-Unions of the country must either include all the workers or only some. At present CH. ix] PUBLIC MEETING AND ASSOCIATION 223 the unions exclude a great number of the workers/ and it is against these excluded workmen far more than against the em- ployers that the struggle in a strike or lock-out is really carried on. By using persuasion (accompanied or not by threats of violence) towards non-unionists, or by refusing to work along with them, unionists seek to compel employers to accept their terms, i.e. they artificially produce the same effect as would be produced by the death or emigration of the workmen competing with them for employment. It is true that in such struggles it is " the fittest " (in the biologist's sense) who survive, and in this case " the fittest " generally means those who have most skill and most steadiness of character, though not necessarily so in every instance. The effect of a successful strike for higher and steadier wages is often to supplant a larger body of irregularly employed and unorganised workmen by a smaller body, more regularly employed. The diminution of casual employment is undoubtedly a gain in many ways, but it in- creases the number of the unemployed. Suppose, on the other hand, that the unions include all the workers in all the indus- tries of a country — I pass over the obvious difficulty of un- employed and casual labourers paying their subscriptions regularly — and that the unions are federated together into one vast industrial association, it will follow that, for many pur- poses, such an industrial association will have become practically the State itself. But this association will acquire the responsi- bilities along with the advantages of the State. Is every one born in the country (even if foreign immigrants are rigorously excluded) to be, by the mere fact of his existence, entitled to have work and subsistence found for him, however incapable he may be ? A continually increasing population does increase to some extent the demand for commodities, but will, in course of time, press more heavily on the resources of the country. And if immigrants are excluded, other countries will probably ^ According to the best calculations, the Trade-Unionists of England and Wales number only 20 per cent, of the adult male manual-working population, only 4 per cent, of the total population. Even in the excep- tional counties of Nortlunnberland and Durham, where Trade-Unionism flourishes most, the Trade-Unionists number only 11-2;) and 11-21 percent, of the population, whereas adult male manual-workers are reckoned at 18 per cent, of the population: so that even there more than one-third of the working men are non-unionists (see Mr. and Mrs. Sidney Webb's History of Trade- Unionism, pp. 409-413). 2 24 THE RIGHTS OF [ch. ix retaliate and prevent the relief hitherto obtained by emigra- tion. The Industrial Federation of united unions will thus be face to face with the population difficulty, but such an Indus- trial Federation will not be able to deal with that difficulty, nor with any of the problems of production and distribution that will arise, unless it ceases to be a mere congeries of " volun- tary " associations, and becomes openly a State able to enforce and maintain a rigid discij)line and a sacrifice of individual aims and likings, such as hitherto has only existed in the army and the navy, and in some of the strictest of monastic orders. Very many Trade-Unionists do not yet sufficiently recognise that the ultimate outcome of their policy is a Socialistic State ; and I doubt if any of them recognise at all the absolute neces- sity for a very severe discipline in the industrial armies of the future. Such a transformation of Trade-Unions from associa- tions of particular groups of producers into a highly organised State is, however, not likely to take place by a one-sided develop- ment. If on the one side Trade-Unions approximate more to the conditions of political organisations, with responsibilities to the common good of all, on the other side the State will probably meet them half-way. If a social re-organisation is to take place without violence, and in such a way as to be fairly stable, it must come about gradually ; a sudden change would probably mean gross mismanagement, corruption, disorder — possibly civil war, and a terrible reaction. The State which is to undertake responsibilities such as no State has yet attempted to undertake, must be free from jobbery or the suspicion of jobbery, and its citizens must possess sufficient enlightenment and a sufficient spirit of obedience for the sake of the common good to subordinate personal or sectional ambitions and pre- ferences to the decision of experts — responsible indeed to the community, but allowed a tolerably free hand, like generals in command of an army in the field. Trade-Unionism, with all its defects, its narrowness of outlook and disregard for interests outside the material well-being of special sections of producers as such, does supply part, though a small part, of the necessary training in obedience and discipline which alone can make anything like a Socialistic State possible. It is a delusion to suppose that shorter hours, whether ob- tained by the efforts of Trade-Unions, or by legislation, or by a combination of both means, will lead to a solution of the diffi- CH. ix] PUBLIC MEETING AND ASSOCIATION 225 culty of the unemployed. Higher wages and shorter hours — if the wages are to be reaUy higher, i.e. capable of purchasing more commodities — will lead to the use of more machinery, and not, directly at least, to the employment of more men ; and a greater demand for machinery can only to a small ex- tent, if at all, increase the demand for labour. The present system of Trade-Unions supplemented by legislative restric- tion of hours of labour cannot do away with the difficulty of obtaining employment, but may even increase it. But though not solving the problem, Trade-Unionism may help to put it in a form more capable of solution. Anything that diminishes casual and irregular employment makes the class of the unem- ployed a more definite body, with which the State may more easily hope to deal ; and the more sharply defined line between the more capable and the more incapable portion of the popu- lation may prepare public opinion for those stringent, though beneficent, measures by which alone the pauper class can be prevented from injuring the more vigorous section of the race. If subsistence is to be guaranteed by the State to all its members, the unemployed must, if capable of it, be set to work ; but this work must not compete in the labour market with that of those already in employment, else the suffering is only shifted from one set of individuals to another. The unem- ployed, if cared for by the State, must be treated as, for indus- trial purposes, a separate and isolated community, whose more capable members may, when occasion arises, be drafted into the ranks of the regular and organised workers : ^ and, as already argued, there must be some check on the increase of the population by State-pensioners. If sach powers of control are refused to the State by the moral sentiments or prejudices of the community, the State may reasonably refuse to deal with these economic difficulties. I have ventured to refer thus briefly to one of the most difficult of social questions — what is very often called the social Cf. Charles Booth, Life and Labour of the Peoj^le, Ed. 2, Vol. I. pp. 1G5-1G8. Mr. Booth does not shrink from uslnp; the word " State slavery" as a name for the only forai in which the problem can be dealt with. One thinks of Fletcher of Saltoun's proposal to dispose of paupers as slaves in the " plantations and at home." See his Second Discourse on the Affaira of Scotland {Works, p. 146-149, Ed. of 1737). The moral objections to slavery, where slaves were private property, are not applic- able to State-slavery in Mr. Booth's sense. N. R. Q 226 RIGHTS OF PUBLIC MEETING, ETC [ch. ix question — in order to illustrate the impossibility of dealing \yith " the rights of associations " without considering the general question of the relation of the State to individuals ; and to show how an unlimited liberty of association is incom- patible with the very existence of the State. The State itself is the only association whose liberty cannot be limited by the State. :iS CHAPTER X FREEDOM OF CONTRACT ; NATIONAL FREEDOM, ETC One of the most important rights of individuals is generally supposed to be the right to enter into contracts with other individuals, and the most important function of the State, according to the theories of those who most seek to minimise its functions, is supposed to be the enforcement by law courts of obligations arising out of contract. The famous theory which explains political obligation as dependent on the social contract is, in one aspect of it, an illogical generalisation of this notion about the functions of government — illogical, because contracts are the product of political society, which cannot therefore be based upon a contract. To try to escape this argument by substituting the term social pact, or compact, for the legal term contract, is a mere evasion ; for the social pact is assumed to be as binding as if it were a contract that could be enforced, or rather it is assumed to be much more binding than any particular contract depending on it. An alleged natural right of freedom of contract is meaningless, if it be im- plied that a State ought to recognise a right in its members to enter into contracts of every possible kind, and should undertake to enforce these contracts. Such an absolute right to freedom of contract would require the State to enforce an obligation to commit crimes and to rebel against itself; but this is anarchical and absurd. It is generally recognised, even by the staunchcst upholders of the sanctity of contracts, that the State may pro- hibit or refuse to recognise contracts of certain kinds. Such an admission implies of course that the State exists for other purposes than simply for the enforcement of contracts; it implies that the State has the right of restricting individual liberty in various ways, even where no contract has been broken, and of discouraging certain kinds of contract by the refusal of legal remedies. If the State may prohibit or dis- 227 2 28 FREEDOM OF CONTRACT; [ch. x courage certain kinds of contracts, it is admitted (though it may be unconsciously) that the State has a moral function, and may rightly endeavour to bias its members in favour of certain kinds of conduct and against others, which is, after all, the only way in which the State ever can be said to try " to make people moral." But if a State has not prohibited a contract of a certain kind, may the State never by any legislative or judicial or executive proceedings interfere with and impair the obligations to which that contract has given rise ? If it may not, great hardships may undoubtedly be inflicted on individuals, and the disastrous result follows that courts of justice will be obliged to enforce what public sentiment may consider to be injustice ; law may come into conflict with what is approved of by the average conscience of the community, and the habit of respect for law and of obedience to it may be seriously weakened. If, on the other hand, the State may interfere with the enforcement of contract-obligations, which the State itself has sanctioned, is not the feeling of security which is one of the primary benefits derived from good government, and which we are told is one of the natural rights of man, very seriously im- paired, and a bad example of dishonesty set to the community ? Now, it is obvious that to interfere with the obligation arising out of a contract already made under public sanction is, on these grounds of honesty and general security, a much more disput- able policy than the prohibition of certain kinds of contract. But an absolute respect for all contracts, not previously pro- hibited, may be a sacrifice of public well-being, and even of the very existence of the community, to the letter of formal legality. Circumstances may have changed so that the en- forcement of a contract undertaken with full deliberation and on equal terms becomes a practical injustice ; or it may come to be recognised that the contract, though in appearance a contract freely entered into, was practically a compulsory submission of the weaker to the stronger, and that its strict enforcement would do more harm, not merely because of the material suffering it may cause, but because of the detestation of law and order which it may excite, than a departure from the general rule of holding people to their legal obligations. No cut and dried rule can be laid down : time, place, and cir- cumstances must determine the manner and degree in which CH. x] NATIONAL FREEDOM, ETC 229 the State may wisel}'- and safely impair tlie obligation of contracts. The Constitution of the United States of America is often held up as an example in contrast to recent legislation in this country, because of the greater sanctity which it recognises in contract obligations. Our critics, especially our American critics, are perhaps apt to forget the difference of circum- stances between an old country, with a very complex society and a very chaos of ancient customs and institutions, on the one hand, and a new country, with, until recently, free space for individual enterprise — a country which made a fresh start after a revolution only a little over a hundred years ago. The time may come when social needs and changing ideals may compel the people of the United States to impair some contract obligations, which are enforced at present. And to do this, they need not delete the section (Art. I. § 10) which pro- hibits laws impairing the obligation of contracts : for that prohibition only applies to the States. The Federal Congress is not prohibited from infringing vested interests or violating the obligation of contracts in regard to any of those matters in which the constitution empowers it to legislate ; e.g. the Federal Congress may make laws releasing debtors from their obligations, whereas the States are (wisely perhaps) prohibited from doing so.^ If equity or public security seemed to require an infringement of legal obligation in some matter over which Congress has not control {e.g. the land laws of a State), it might be safer to extend the powers of Congress by an amendment to the constitution in that respect, than to give State legislatures too free a hand. The difficulty of amending the Federal Constitution at all may, indeed, put serious delays in the way of necessary legislation. The "free labourer," who is the object of dislike to the mili- tant Trade-Unionist, may be regarded as a person who asserts the natural right to dispose of his labour as he chooses, i.e. who demands the protection of the State in order that he may have this freedom. This right of freedom in the disposal of labour is expressly asserted in the French Declaration of 1793. In article 18 it is provided that " Every man may engage his services and his time, but he cannot sell himself, or be sold ; his person is not an alienable property. The law does not ^ Desty's Federal Constitution, p. 84. 230 FREEDOM OF CONTRACT; [ch. x recognise the condition of servitude {domesticife) '\: ^ while personal bondage is excluded, the right of perfectly free con- tract between employer and emplo^'^ed is recognised. Such a principle, if strictly carried out, would of course prevent any legislative interference with the hours or the conditions of labour, and would certainly require the State to put a con- siderable check on the freedom of Trade-Unions in boycotting blacklegs, or in doing anything beyond endeavouring to per- suade free labourers, by logical or rhetorical arguments, not to undertake work on conditions unfavourable to themselves or to other workers in the same trade. The evident purpose of this and some other articles in the French Declaration was to get rid of restrictions, whether due to legislation or to the custom- ary privileges of guilds, etc., on the free movement of labour. The ideal was " a career open to talents " — complete negative liberty. This is the droit da travail; the droit au travail is the positive right to get work found for one. A subsequent article (21) in the same Declaration recognises the right of citizens to subsistence in the following form : "Public relief {les secours publics) i& a sacred debt. Society owes subsistence to unfortunate citizens, either by procuring work for them, or by assuring the means of existence to those who are not capable of working." In the Jacobin draft this principle is expressed in somewhat stronger language : " Society is obliged to provide for the subsistence of all its members, either by procuring work for them, or etc." — as before. The form adopted was apparently a compromise between the Jaco- bin form and the draft of Condorcet, which says nothing about the procuring of work, though recognising that " Public relief is a sacred debt." In the Declaration of 1848, it is asserted (art. 8) that the Republic " ought by fraternal help to assure the existence of necessitous citizens, either by procuring work for them, within the limits of its resources, or by giving, where the family cannot (or does not?) do so [the words are a defaut de la famille\ assistance to those who are incapable of working." The wording is somewhat vague. What is to be done with those who will not work, though able to do so ? And what is to limit the power of the government to find work for the unem- ^ Practically identical in Condorcet's draft. Cf. Lord Halsburj^'s words quoted in Chai^. I. p. 15. CH. x] NATIONAL FREEDOM, ETC 231 ployed? May it increase taxation, for instance, in order to provide nnremunerative work, or does " the limits of its re- sources " imply that taxation should not be increased for this reason alone, and that the work ought to be remunerative? If the work is to be remunerative, how is competition to be avoided in a market which is proved to be already overcrowded by the mere existence of unemployed labourers ? It may be necessary to repeat what has often been pointed out, but is still generally ignored, that the experiment of national workshops in 1848 was an experiment tried under most unfair conditions and managed by persons who did not wish it to succeed : the failure of this experiment is of itself no argument against the State undertaking the responsibility of providing work. But a careful consideration of those questions, which are suggested by the cautious but ambiguous wording of the Declaration, calls attention to some of the difficulties involved. In the long run, we always come face to face with the ultimate problem : Can a State, without the cer- tain prosj^jcct of ultimate disaster, undertake to provide work and a satisfactory subsistence (judged by the average standard of living at present) for all its members, without taking some security against an indefinite increase of population, and against a disproportionate increase of the less capable part of the popu- lation ? ^ ' Charles Mackay sings : — " There's a good time coming, boys, A good time coming; And a poor man's family Shall not be his miser3^ In the good time coming. Every child shall be a help, To make his right arm stronger ; The hap2)ier he the more he has ; — Wait a little longer." Such a sentiment is meaningless and foolish except under the con- ditions of a new and thinly peopled country. If the resource of emigra- tion be largely diminished, through the filling up of new countries, and through the policy dictated by the wage-receivers there, and if the right of every one to subsistence and, if he can work, and will work, or has worked as long as he could, to a comfortable subsistence, be legally conceded, — a continuous increase in population must mean a continuous, not necessarily an exactly proportionate, lowering of the standard of comfort. 232 FREEDOM OF CONTRACT; [ch. x A " free coiintr}'," or a " free people," may mean that the government is of a more or less democratic kind, but it may only mean that the country is not under the rule of any foreign power. AVordsworth lamented the extinction of the Venetian Republic and the conquest of Switzerland by the French ; but the Venetian Republic was a close and tyrannical oligarchy, and the establishment of the Helvetian Republic by the help of French arms was a liberation of the people of Vaud and Ticino from the oppression of the German cantons. Those Poles who have come under the sway of Russia have gained nothing and lost a great deal ; but the liberty of Poland meant the liberties of an aristocratic caste who showed particularly little capacity for governing — to say nothing about governing well. A people may often prefer to be ill-governed by rulers of their own race, to whom they are accustomed, rather than to be governed much better by aliens. The resistance of Spain to Napoleon is a typical example. And in the long run it is generally best that a people who have too strong sentiments of nationality to be readily assimi- lated even by a higher form of civilisation, should work out their political and social problems for themselves. Progress may be very much slower, but it is likely to be more steady and more secure. The question, however, arises : In what sense has a nation, a country — that is to say, a particular group of people — a right to freedom, in the sense of independence ? In other words, how far can we suppose that other nations are morally bound (of any other obligation it is superfluous to speak) to respect the independence of a particular nation ? Suppose this nation is in a chronic state of disorder, that laws are not enforced, or that there is so much oppression that discon- tented and persecuted persons are always endeavouring to cross the frontier, may not neighbouring nations have " a right " to interfere — even on behalf of the inhabitants of the country itself ? Or suppose that the territory possessed by a particular race or nation is fertile and full of natural resources, but that owing to misgovernment or backwardness in civilisa- tion these natural resources are left undeveloped ; may not neighbouring nations with an overflowing population capable of utilising these natural resources be thought to have a right to seize such of this territory as is convenient for them ? CH. x] NATIONAL FREEDOM, ETC 233 I do not think there is much profit in discussing the morality of aggression without taking account of the fact that, under such circumstances as I have supposed, neighbouring nations are certain to avail themselves of convenient opportunities for enlarging their territory and increasing the advantages of their members. And where aggression is undertaken because of disorderliness or great misgovernment, which makes a neigh- bouriug country a breeding ground of criminals haunting the frontier, or a breeding ground of pestilences, aggression maj^ very reasonably be held to be a kind of police-measure and a legitimate form of self-defence. Professor Lorimer, in his interpretation of the Law of Nature, speaks of a "natural right of aggression." "Aggres- sion," he says, " is a Natural Right, the extent of which is measured by the power which God has bestowed on the aggressor or permitted him to develop." ^ This seems to me a very much more logical and consistent application of the idea of nature, than is to be found in most theories of natural rights. Natural right is here determined simply by might or power, as in the theory of Spinoza. It should of course be carefully noted that " power " does not mean simply what is called "brute force," but all those intellectual and moral qualities which are implied in greater strategic skill, greater discipline, and, above all, in the power of keeping possession of territory seized by war and of turning a conquered population into orderly and peaceable subjects or fellow-citizens. Such a re- cognition of a natural right of aggression is often strongly objected to by those who see nothing wrong in a trade-union striking to secure better terms for its own members, when a favourable opportunity occurs, even though a strike necessarily involves much suffering to many individuals other than the strikers themselves. But the principle in either case is the same — the action, so far as it is justified, can be justified only on the grounds of its success and on the better condition of some very considerable number of human beings which results from that success. It is important to note that such a right of aggression depends on the superiority in civilisation of the conquering power — that is to say, it is assumed that the nations concerned are not treated as equals. Where it has become convenient 1 ListUuteii of Law. I quote from the "Coutonts " of Book II., chap. 5. 234 FREEDOM OF CONTRACT; [ch. x and customary, as it lias among the civilised powers of Christendom, to assume the diplomatic equality of powers ■whose military and other resources are very unequal, there is also the feeling that aggression as such is not justifiable, and that war is only justifiable if entered upon for what may plausibly be considered the purpose of self-defence. But it is of coursa very easy to give " defence " a wide interpretation. For a nation under all circumstances to wait until it is attacked may mean to give such an advantage in carrying on war to the assailant, that the nation may lose its independence, or that some portion of it may be annexed by a less scrupulous neigh- bour.^ As to instances of the use of force by civilised over barbarous or savage peoples, it is cheap virtue to call them " interna- tional burglaries," and a very misleading use of language. The word burglary can only be used metaphorically in cases where there is no common criminal law to which both parties are subject ; and the use of the term involves a naive accept- ance of the status quo, analogous to what is implied in calling any legislative interference with ancient rights of property " confiscation " or " theft." People who are ready to advocate the disendowment of an Established Church have very little right to call the conquest of India or the invasion of Egypt acts of burglary. They ought to leave that language to those who call any readjustment of the ancient endowments of cor- porations a " robbery of God." A savage or barbarous people, misgoverned by some ferocious or incapable tyrant, cannot be regarded, except conventionally, for some special purpose of international convenience, as an independent nation in the same sense as one of the great powers of Europe. In the interests of humanity we can recognise no absolute right in all governments, however bad, never to be interfered with. We laugh at the Divine Right of Kings, claimed by Stuarts Did tlie French Republic, in 1792, enter on a war of aggression, or of self-defence? Did Prussia, in 1870, enter on a war of aggression, or of self-defence ? Even tlie peace-loving Mr. Herbert Spencer speaks of territories taken from the French "in punishment for their aggressive- ness " (Principles of Ethics, Vol. I. p. 318). He assumes apparently tliat nothing can be said against the view that Germany in taking Alsace and Lorraine was simply recovering stolen goods. How far a province may have been assimilated by a conqueror is a matter your abstract thinker does not dream of considering. CH. x] NATIONAL FREEDOM, ETC 235 or Bourbons ; but the natural riglit of a king of Dahome}', or of every robber chief or murderous pasha, to be left undisturbed by all civilised nations, is at least quite as absurd. There would be more reason for arguing that there is a natural right inherent in all men to be governed well — an idea suggested by the language of the French Declarations, which are Declarations of the rights of men as well as of citizens. And it is good government that alone legitimises conquest ; but it does legitimise it in the minds of those who are prepared to think out questions of right and wrong in the light of actual human experience and not of arbitrary and a j)Viori principles or prejudices. I do not mean to suggest that the dealings of civilised nations with uncivilised or less civilised races present no difficult moral problems. All that I mean to insist on is, that a general principle of non-intervention, based on an assumed inalienable natural right of every group of human beings that may call itself an independent tribe or people, is of no use whatever for practical guidance. It is an unworkable principle, and it is a wrong principle. A nation acts unwisely, and therefore wrongly, if it undertakes responsibilities which it cannot properly fulfil and which it could have avoided. It is wrong to interfere, if we cannot reasonably hope to leave things in a better condition than that in which we found them — a better condition for the ind'widuals whose national or tribal independence has been interfered with. But it is absurd and misleading to class all interferences under the same general condemnation ; it is a transference to foreign affairs of the abstract belief in laissez faire. The contact of higher and lower races, especially where the gap between them is great, often forms one of the most unpleasant and saddest parts of history ; but the contact is likely to be more disastrous in its consequences where it comes simply through the irre- sponsible action of private adventurers, than where a certain measure of order and security and systematic administration of justice is bestowed on a people in lieu of the right of being left a prey to native despots and slave-raiders. Lovers of peace ought to show due gratitude to the _i)ax Roninna,^ wJiich * '• Throughout civilisation," says Mr. Herbert Spencer {Principles of Ethics, Vol. I., p. 374), " the relations of citizens have become relatively equitable only as fast as militancy has become less predominant; and 2 36 FREEDOM OF CONTRACT; [ch. x gave Europe a time of quiet such as it lias never enjoyed since the Empire fell to pieces, and to the -pax Britamiica^ which would come to a speedy end were India left to the Indians. " India for the Indians," indeed, may serve as a good specimen of those cant phrases which are used so freely as rhetorical substitutes for argument. There may be an Indian nationality some day ; if there is, its existence will be due to British rule and its language will, in all probability, be the English tongue. Closely connected with this subject of national or tribal independence or liberty is the " right " by which a State may claim to reserve the territory it possesses for the exclusive use of the present inhabitants and their descendants — the right to prevent or restrict immigration. It is clear that there is no sense in talking about a general natural right on the part of every human being to go and settle in any part of the world he chooses ; the right will depend on whether other nations wish to have him or, if they do not, on whether they can manage to keep him out. In the past, when facilities for movement were much less than they are now, countries which served as an asylum for the persecuted have generally profited greatly by the folly of their neighbours in weeding out many of the most vigorous minds and characters in the nation. When a country, however, is fairly well filled and has a sufficiently mixed stock already, it may reasonably refuse to help to solve the problem of pauperism for other lands. ^ The country which excludes desirable immigrants, on the other hand, will suffer for it in the long run. And the need of an outlet for a vigorous and overflowing population may become so urgent as to break down barriers against immigration defended by too scanty hands. Here indeed we come upon the other side of the population onh' .along with this change has the sentiment of justice become more pronounced." A fighting people is not necessarily a legislating people; but docs Mr. Spencer know of any great governing people which has not shown its capacity for conquest and for retaining its conquests f ' The United States of America have already given up their right to the once famous boast that their — " Free latch-string never was drawed in Against the poorest child of Adam's kin." The rights of the existing citizens are now asserted against any general rights of man. CH. x] NATIONAL FREEDOM, ETC 237 question. It may be argued that, if the more civilised races were to become stationary in numbers, the world might be overrun by the lower races. Those who use this argument are apt to forget two things— first, that the quality of a race is more important than mere numbers. A swarming popula- tion of hereditary paupers is no gain to the countr}' that is burdened with their support. Secondly, a race may even dwindle, and yet its type of civilisation may be successfully imposed on immigrants of other races, so that the nation increases. France attracts numerous immigrants from neigh- bouring countries, but the Frenchman need not be despondent about the future of his country so long as he turns them all into Frenchmen, as he has hitherto always succeeded in doing. Exclusion of immigrants, if allowed to be in some cases a justifiable policy, is, it should be clearly recognised, quite inconsistent with any sincere admission of the equality of all human beings, or with any natural right of all to share in the gifts of nature. It is inconsistent also when those, who object to the immigration of labourers who will lower the standard of living, object to the endeavour of trade-unions to exclude from employment free labourers of their own country who will lower the standard in a similar way. There is indeed this difference in favour of the former policy over the latter, that a nation may, with an honest government, decide the question at least in the light of the whole nation, taking into account the probable effects of its policy on the treatment of its own citizens in foreign countries affected by this policy, while a trade-union is very unlikely to consider anything except the obvious and apparent interests of its own members, and may even leave out of sight the effects of its policy on the price of commodities and consequently on the ultimate real wage even of its own members. Both endeavours, however, that of a nation and that of a trade-union, to keep up the standard of living are irreconcilable with any doctrine of natural rights, except such as frankly recognises the connection between natural right and the power of getting one's own way. CHAPTER XI EESISTANCE TO OPPRESSION The French Declaration of 1789 names among " the natural and imprescriptible rights of man," whose maintenance is the end of all political society, not only the rights of liberty, of property, of security, but the right of resistance to op- pression. The Declaration of 1793 asserts that " Resistance to oppression is the consequence of the other rights of man " (art. 33). The following article gives what appears to be intended for a definition of " oppression," but it is somewhat more epigrammatic than lucid. " There is oppression of the social body when any single member of it is oppressed : there is oppression of every member when the social body is op- pressed." This statement really implies a theory of the relations of society to the individual that is fundamentally inconsistent with the individualistic view of society implied in the whole doctrine of natural rights. The 35th and last article of the Declaration is as follows : " When the government violates the rights of the people, insurrection is for the people and for every portion of the people the most sacred of rights and the most indispensable of duties." " Resistance to oppression " might indeed be used to mean simply legal remedies against illegal or arbitrary action on the part of officials ; and doubt- less that was part of what the framers of these Declarations were thinking of. And it is a reasonable demand that a Constitution should provide individuals with legal means of defending those rights which the Constitution professes to . guarantee to them. But the last article of the Declaration of 1793 gives a wider meaning to the term "resistance." That a Constitution should provide means for its own amendment is essential, if it is not by claiming eternity to provoke revolu- tion ; and it is expedient that the delays and difficulties of the amending process should not be such as to make amendment seem practically impossible. Some of the American Declara- CH. xi] JiESISTAXCE TO OPPRESSION 239 tions indeed assert that the people " have at all times an inalienable and indefeasible right to alter, reform, or abolish [Query, without substituting anything in its place?] their form of government in such manner as they may think expedient." ^ Between " at all times " and " never," or " at very long intervals," a mean is often deemed expedient. But such a right of constitutional amendment by constitutional means is a very different thing from a constitutional guarantee of the right of overthrowing the government by the use of force. Such a constitutional right of insurrection is the most anarchical and contradictory notion that it ever entered into the heart of man to conceive. Even the vaguer right of resistance to oppression is left out of the Declaration of 1795, for obvious reasons of historical experience. As Bentham remarks, " Between 1791 and 1795 Citizen Resistance-against- Oppression had been playing strange tricks." ^ It would be very unjust, however, to suppose, as is frequently done, that this notion of a right of resistance was the outcome merely of French political inexperience. As asserted in the Declaration of 1789, it may be regarded as only a repetition of the right which is asserted in the American Declaration of Independence, and the right there claimed is nothing more -than had been recognised and defended by Locke in his Treatise of Civil Govenimeyit — the theoretical defence of the English Revolution of 1688. The American Declaration of Indepen- dence is, however, a Declaration of war, and is hardly therefore the best model for a Declaration of those Rights which are to be guaranteed by a Constitution. To find a genuine parallel to the constitutional recognition of a right of resistance we must go back to times when the idea of the State was in a very rudimentary stage — to such documents as the " Golden Bull" of King Andrew (a.d. 1222), which concedes, while like Magna Cliarta only professing to confirm, the special privi- leges of the Hungarian nobility. " Should we," it is written, "or any of our successors, at any time be disposed to infringe upon any of these our orders, the bishops, as well as the other lords and the nobles of the realm, shall be at liberty, jointly or singly, by virtue of this letter, to oppose and contradict us and our successors, for ever, without incurring the penalty of 1 "Declaration of Rights," in Constitution of Alabama, 1809. ^ Anarchical Fallacies, in Works (18i3), II. p. 525. 240 RESISTANCE TO OPPRESSION [ch. xi treason." ' Such a method of imposmg a check on oppression is only a degree less primitive than the letter of King Ahasu- erus, in which he permits the Jews to massacre those whom he had previously permitted to massacre them - — violence checked by counter-violence. In a written constitution of the modern type, it is, however, an anomaly and an absurdity to recognise a right which, strictly interpreted, would make government impossible, a right which contradicts the fundamental notion of sovereignty. Rousseau's teaching about the sovereignty of the people is often made responsible for the anarchical theories of some of the French revolutionary leaders, but those who thought they derived a right of insurrection from Rousseau proved themselves unintelligent disciples ; for on Rousseau's theory there is no sense in claiming the right of insurrection. If a peo|)le throw off a tyrannical government it is an act of sovereignty ; and to call it an " insurrection " involves the assumption that the government is the sovereign, which it never can be, on Rousseau's theory, except by usurpation. Such a usurping government should be called a " rebel," and punished as such. This theory may seem strange ; but at least it is logical, which the guarantee of a right of insurrection is not. It is, indeed, only a Constitution like the present Federal Constitution of Switzerland, with its referendum on all consti- tutional changes, and potentially on all laws, that gives any security for the smooth and quiet working of a legal sovereignty of the people.'^ Those, indeed, avIio accepted what may be called the Hilde- brandine theory of the Papal power, may be said to have made the Church, i.e., for convenience, or in explicit theory, the Pope, the only true sovereign over all Christian peoples. The justification of resistance to tyrants (even of assassination of tyrants, when necessary) by many mediseval theologians and by some Jesuit casuists (in reference to Protestant rulers, of course) always rests on the assumption that the Pope can decide who is and who is not a "tyrant." When allegiance to the Pope is thrown off, every one is left to decide for himself what constitutes the "tyranny" or "oppression" that justifies resist- ^ Yambery, Huntjary ("Story of the Nations" Series), p. 130, ^ See The Book of Esther. ^ On this subject I may be allowed to refer to an Essay on " Tlie Con- ception of Sovereignty," in my Daricin and Hegel, etc. CH. xi] RESISTANCE TO OPPRESSION 241 auce, and thus, although morally resistance may seem perfectly justifiable and necessary, the appearance of legality, that might seem to cling to it in the minds of those who accepted the Pope's deposing power, has altogether disappeared. If indeed a Constitution be thought of as a Compact, there is considerable plausibility in regarding the "insurrection" of one of the parties to the compact as constitutionally justified by the failure of the other party to perform his (or its) part of the compact — the party that considers itself aggrieved claiming the right to judge when the compact is broken. It was by appealing to this notion of a contract between King and People that the English Convention Parliament justified the Revolution of 1688.^ The idea of a contract between King and People was very widely held in the middle ages, and frequently received a sort of express recognition in the form of the coronation oath. The theory, like many other illogical theories, has been practically very useful in helping the cause of political libert}^ ; but the very fact that it gives a quasi- constitutional sanction to rebellion is a refutation of its claims to represent the true legal theory of a Constitution. There is no doubt that the theory of the United States Con- stitution of 1787 as a Compact between Sovereign States was widely held at the time the Constitution was framed ; and if it had not been a plausible interpretation of the Constitution, several of the States might have been more reluctant than they were to give up the more independent position which they held under the original Confederation. And I think it must be granted that there is a greater appearance of constitutional legality in the South Carolina Declaration of Independence of 1860 than there is in the Declaration of Independence of the Thirteen Colonies in 1776. The Thirteen Colonies could only appeal to natural rights and to abstract principles, inherited from the theories of Locke and others: South Carolina ap- pealed, in addition, to a definite written agreement actually formed between sovereign States — the terms of which agree- ^ Even Grotius, wlio rejects the idea that there is auy general natural right of resistance, allows a right of resistance when a i)riuce has abdi- cated, or when he is manifestly bearing himself as the enemy of his whole people. — De Jure, Belli et Facia, I., c. iv. §§ 8 seq. Tiie English Revolution of 1688 might fairly be brought under the sanction of his principles. N. R. K 242 RESISTANCE TO OPPRESSION [ch. xi ment liad, it was alleged, been broken.^ Furthermore, whereas the majority of the Colonies, when they renounced their alle- giance to the British Crown, had to frame for themselves new Constitutions and all of them had to make themselves from dependencies into States which previously had no legal exist- ence as such, South Carolina, in seceding, was simply retain- ing her existing constitution and resuming the position she actually had occupied in 1787. The better legal theory of the United States Constitution undoubtedly rejects the view that it is a Compact: it is not made by the "United States," but by "the People of the United States" — a sovereign body that had no existence in the Confederation of 1777. The fortune of war confirmed the interpretation adopted by the Supreme Court .; and events revealed that an American Nation had grown up in a sense which the particularism of the South had not realised. But, still, there was a very plausible case for the constitutional right of secession — more plausible than could be alleged for many rebellions where the moral duty of re- bellion seems clear and where the appeal court of history has condoned the want of legal right. For legality and moralit}", legal rights and political or historical facts, are often very different things. And the gravest objection to the whole theory of natural rights is, that it is always tending to confuse the two sets of notions, by representing what may on occasion be moral duties as legal or quasi-legal rights, and hy concealing under such ambiguous terms as " can " and " cannot " the difference between "ought" and "is," or between "wish" and ^ The South Carolina Declaration of Independence, after referring to the Declaration of Independence of the Colonies, which asserted their existence as sovereign and independent States, to the recognition of the United States as sovereign and independent States by Great Britain in 1783, and to the formation of the Constitution of 1787 by the sovereign States, proceeds as follows: "We hold that the government thus estab- lished is subject to the two great principles asserted in the Declaration of Independence [viz. the right of a State to govern itself and the right of a people to abolish a government when it becomes destructive of the ends for which it was instituted], and we hold further that the mode of its formation subjects it to a third fundamental principle, namely, the law of compact. We maintain that in every compact between two or more parties the obligation is mutual — that the failure of one of the contract- ing parties to perform a material part of the agreement entirelj^ releases the obligation of the other, and that, where no arbiter is appointed, each party is remitted to its own judgment to determine the fact of failure with all its consequences." CH. xi] RESISTANCE TO OPPRESSION 243 " power." ^ Much is lost in logical clearness, and notliing is gained in practical politics, by endeavours to shirk the neces- sarily unlimited character of sovereignty — the legal despotism of the legal sovereign. Disobedience to the law of the land — ■ if it is the law of the land — can never be a legal or consti- tutional right ; it may be morally excused, or it may be a moral duty. If there is this conflict between ]aw and morals, that is a reason for changing the law if possible — peaceably and constitutionally if possible ; but it is no reason for pre- tending that the law is what we think it ought to be, or that what we think ought to be is law. When people think about a " right of resistance " they are really concerned with a moral, not a constitutional, question. When, if ever, is it right to use force against a de facto govern- ment? This is an important question of political casuistry. It is said that a bishop, in a country that I need not specify, was once consulted as to whether a rebellion of a certain kind would be justifiable : he answered, " There are reasons on both sides. For the negative there is, /?r.S'^, that you have no cannon "" It v/as unnecessary to proceed with the argu- ment. The worthy ecclesiastic laid stress on a very important element in determining the rightness of resistance — a reason- able chance of success. But success ought to be taken to mean, not merely overthrowing and destroying the existing government or constitution, but substituting something better that is Ukely to last fairly well. Another most important consideration is this : Have all peaceable and constitutional means of reform been tried in vain, or does the government make it impossible to have recourse to them? And the last question, the question which should really be asked first, is this : Are the evils under which we are suffering such that they are worse than the risk of disorder and bloodshed?^ This last question is likely to be answered very dilferently by persons and races of different temperament. » Cf. Bentham, Anarchical Fallacies, Works, II. pp. 494, 495, 499, 500, etc. ^ Cf. the story of the answer of Bisliop Lesley to the E;irl of South- ampton, p. 177, note. 3 On the ethics of resistance see T. H. Green, Philosophical Works, II. pp. 455 seq. CHAPTER XII EQUALITY ^ Amonq the natural rights of man which a Constitution ought to guarantee, equality is not named in the French Declaration of 1789, although in article 6 the equality of citizens before the law is expressly asserted. " The law should be the same for all, both in protecting and in punishing. All citizens being equal in the eye of the law, are equally admissible to all dignities and public places and employments, according to their capacity, and without other distinction than that of their virtues and their talents." In the Declaration of 1793, " equality " is named along with liberty, security, and pro- perty, as one of the natural and imprescriptible rights to guarantee which government has been instituted (arts. 1 and 2). A separate article asserts that " all men are equal by nature and before the law." This more extreme position of the Declaration of 1793 comes nearer to the words of the American Declaration of Independence. In the Declaration of Independence it is said, " We hold those truths to be self- evident, that all men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." The equality of mankind is asserted to be a self-evident truth, and equality is not regarded as the creation of the law, but as something which exists independently of any human law. Some of the State Constitutions contain similar assertions in their Declarations of Rights. Thus in the Connecticut Declara- tion (1818) we read, " That all men, when they form a social compact, are equal in rights, and that no man or set of men are entitled to exclusive public emoluments or privileges from ^ A short article of mine on this subject appeared in the Contemporary lieview for October, 1892. The present chapter, though written from quite the same point of view, is an independent treatment of the question. 2U CH. xii] EQUALITY 245 the community." It is instructive to put alongside of this the parallel passage in two Southern Constitutions formed about the same time. In the Mississippi Declaration of Rights of 1817 and in the Alabama Declaration of 1819, it is declared " that all freemen^ when they form a social compact, are equal in rights," etc. — a significant amendment of the phraseology that was common at the time of the War of Independence. Now, what is meant by the natural equality of men? The meaning may be only this : that distinctions in rank, in wealth, in political and social status, etc., are due entirely to social arrangements, and apart from society would not exist. This is a principle which may be accepted, not perhaps as self- evident, but as a consequence of a process of abstraction, by which we eliminate all that history and experience prove to be due to human institution, deliberate or unconscious. In this sense the natural equality of mankind means the same sort of thing as the freedom of mankind by the jus vafurale Avhich Ulpian recognises. In this sense the equality of mankind is accepted equally by Hobbes and Locke. Hobbes, indeed, goes farther than this, and makes the natural equality of men mean, not merely the absence of those inequalities which are due to institutions and conventions, but an approximate positive equality in faculties of mind and bod5^ " Nature," he says {Leviathan, ch. xiii,), " hath made men so equal in the faculties of body and mind, as that, though there be found one man sometimes manifestly stronger in body, or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable, as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others that are in the same danger with himself. [The need of secret machination and of confederacy with others is an odd reason to give for equality !] And as to the faculties of mind . . . I find a yet greater equality amongst men than that of strength. For Prudence is but Experience, which equal time equally bestows on all men in those things they equally apply themselves unto. That which may, perhaps, make such equality incredible, is but a vain conceit of one's own wisdom, which almost all men think they have in a greater degree 246 EQUALITY [ch. xii than the vulgar; that is, than all men but themselves, and a few others, whom, by fame or for concurring with themselves, they approve." Hobbes seems to adopt an unnecessarily wide premise for taking down the pride of those who think them- selves superior persons. Locke, who cites " the judicious Hooker" in support of the self-evident character of the equality of men by nature,^ does not venture to assert the actual positive equality of men in the same way as Hobbes does. Children, he confesses, are not born in this full state of equality, though they are born to it,- a distinction which implies a recognition, however slight, of difference between nature as the original condition, and nature as an ideal of what ought to be. And in speaking of the " State of Nature," he argues that the state is one of equality, " there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of Nature and the use of the same faculties, should also be equal one amongst another, without subordination or subjection, unless the Lord and Master of them all should, by any manifest declaration of His will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty " ^ — a passage which suggests that it cannot be self- evident that the Creator has made all men equal, if the Creator could, without contradicting Himself, make some superior : the positive Divine law is usually supposed to be limited by the law of nature. Locke makes equality consist in the being born to the same advantages of Nature, as if it were not self-evident that all were born witli the same advantages. Furthermore, he limits equality to those of " the same species and rank." But what determines sameness of ranli (it must be natural rank, of course) ? and what if it were held that different human races were naturally different in rank ? The natural equality of all mankind in the sense of a positive equality of inlierited bodily and mental powers (acquired powers being obviously due to institutions) is not so likely to be dogmatically asserted now-a-days as it was in the days when biology did not exist as a science, and when it was still possible for the inhabitants of civilised countries to idealise the noble savage. Let it be admitted as fully as possible that * Treatise of Civil Government, II. § 5. 2 Ibid., § 55. » Ibid., § 4. CH. xiij EQUALITY 247 the natural gulf which separates the lowest savage from the highest extant ape is greater than that which separates the lowest savage from the highest civilised race ; that is to say, let it be admitted that the brain of the savage differs more from the brain of the ape than it does from the brain of the civilised man, while the actual mental furniture of the savage is nearer to that of the ape than to that of the civilised man, this proves indeed the enormous extent to which inequalities are due to differences in training and in social environment — i.e, to human institutions ; but no careful or thoughtful person can now-a-days deny the very great differences in mental and moral capacities, even among persons of the same race, nay, even of the same family, and with equal opportunities of cul- tivatiug their natural powers. Differences in bodily health, strength, etc, (prior to training), are too obvious to need remark; some persons inherit better constitutions and more capacity for ph3^sical development than others. It is perfectly unscientific, and, therefore, perfectly useless, now-a-days to discuss the political and social aspects of equality, except on the basis of admitting the great natural inequalities among human beings. But supj)ose these admitted ; it does not follow that in respect of legal and political rights persons who may be naturally un- equal ought in no case to be treated as legally and politically equal. In the first place, natural inequalities, especially mental and moral inequalities, are not always easy to discover ; they take time to show themselves. Even Aristotle, while basing his defence of slavery on the natural inequalities of human beings, admits that it is not always easy to tell who is by nature a slave, and who is by nature fit for freedom, and con- tents himself with the rough practical rule that the Greek race is superior to barbarians, and that therefore Greeks ought not to be enslaved.^ Thus laws and institutions may often treat unequals as equals, simply because of the difficulty of deciding degrees of inequality by any sufftciently certain standard. Secondly, because Nature has made human beings unequal, it does not follow that human laws and institutions should attempt to follow Nature in this matter, even if it were possible to do so. It may often be considered best to en- deavour to remedy the inequalities which Nature has inllicted on her children. " It is precisely," says Rousseau, " because ' Pol, I. 4-6. 248 EQUALITY [cH. xii the force of circumstances tends always to destroy equality, that the force of legislation ought always to tend to maintain it." ^ There are, of course, obvious limits to the extent to which this ought to be done ; e.g. it would not be safe to make every citizen in turn commander of the navy or the army on grounds of equality. Even in Athens, where the lot was used in order to secure a rotation of official experience among the citizens (the dominant caste of free men — be it understood), the principle was not ajiplied in electing generals. How far equality should practically be applied in determining the rights of citizens is a matter that cannot be decided a jyviori by any reference to Nature, but must be settled in every case by some compromise, based on a consideration of what is safe, when the maintenance of security against external enemies and the avoidance of discontent at home are both considered. The existence of the ideal of equality in the minds of a people is, of course, an important factor in determining what can be done, what ought to be done, and what is likely to be done. This ideal of equality is an inheritance from the inequalities of ancient societies ; it is the idea of a peerage — an order or caste of nobles who recognise each other as in some respects and for some purposes equals, while asserting their superiority to the rest of the nation or the rest of the human race.^ The idea of equality has grown out of the idea of privilege ; the same is the case with the idea of freedom. Both ideas are the outgrowth of aristocratic and slave-holding communities. It was in contrast with the subject and the slave that men first felt themselves equal and free. The ancient democracies were slave-holding aristocracies ; but the ideas of liberty and equality once started go farther. Even in the modern democratic ideal, there is no doubt that the equality of mankind is connected with the superiority of man as such to all the lower animals. Those who would assert the equality of all sentient beings would put an end to the equality of mankind as such. For it is the recognition that there is something in man which distinguishes him as such from all other animals that alone justifies one in speaking of the equality of men as men. ' Contr. Soc, II. c. xi. ^ Cf. G. Tarde, Les Lois de V Imitation, p. 257 : " Le veritable travail preparatoire de Fegalitarisme actuel a ete execute dans le passe par la noblesse et non par la bourgeoisie ; " and ideas spread downwards. CH. xii] EQUALITY 249 When Beiitliam uttered his dictum, " Everybody to count for one, nobody for more than one," ' and assumed it as a principle by which to interpret his formula of Greatest Happi- ness as the ethical end, he uttered a dictum which has been extremely serviceable in aiding legislative reform by putting a check on arbitrary appeals to the law of Nature ; but it is a dictum which itself involves the assumption of that natural right of equality, against which he himself protests. ^ We are not entitled to assume the equal claims of all men to happiness if our ethical principle is based solely on the fact that all sentient beings naturally pursue pleasure. If the greater sum of pleasures be always to be preferred, and be our sole ultimate criterion of right and wrong, it is quite illegiti- mate to prefer a smaller sum of pleasures distributed among a larger number of persons to a larger sum of pleasures though shared among a smaller number of persons. For the purpose of this moral arithmetic we must, of course, assume that pains may be simply reckoned as a set-off against pleasures, so that m units of pleasure would be exactly cancelled by m units of pain. We must also assume that our hedometer (a desirable instrument that no Grreatest Happiness moralist has yet invented) will enable us to measure intensity against dura- tion. We miust make these assumptions, strange or ridiculous as they may seem, if the hedonist ethical standard is to be saved from the caprice of every individual, and to be put on an objective and ''scientific" basis by the introduction of quantitative measurement. J. S. Mill, although he quotes the dictum about everybody and nobody to which I have just referred, denies the quite sound criticism of Mr. H. Spencer, that " the principle of utility [in Bentham's sense] presupposes the anterior principle, that everybody has an equal right to happiness." According to Mill, Bentham's principle only supposes " that equal amounts of happiness are equally desirable, ?o/«. Cotton, John, 202. Cowper, W., 68, 69. Cromwell, Oliver, 8, 10, 200. Cynics, 26/?, 34, 35, 41m, 53, 65, 114. Deists, 13, 43, 44, 45. Democritus, 26w. Demosthenes, 30h. Dicey, Prof., 152, 155, 211. Dickens, Charles, Nicliolas XkJcelbi/ quoted, 20. Diogenes the Cynic, 33. Diogenes Laertius, 33. Donaldson, Principal, ll'In. Druidism, 160. Dutch, The, at the Cape, 268. Edmunds-Tucker Law, 207, 209. Edwards, Thomas, author of Gan- qrcena, 9. Egypt, -26, 231. Elizabeth, Queen, 177, 198. England, " Bill of Rights " of 1689, 6, 11. England, Church of, see Anglican. English Government, 50. English Houses of Parliament, 153. English Revolutions of 17th cent., 5, 17, 51, 241h. Empedocles, 30«. Epictetus, 35. Erigena, Joannes Scotus, 71, 72k. Espinasse, 70«, 1.53«. Eui'ipides, 26. Fatalism, 18. Fester, R., bin. Fichte, 51. Filmer, Sir R., author of Patriarcha, 8, 91, 92. Firth, C. H., 8», 9«, 2.55». Fisher, Marv, 201. Fiske, J., quoted, 184h, 201. Fletcher of Saltoun, 225h. Florence, 58. Fowler, Prof. T., 273n. Fox, George, 201. France, 3, 5, 237. Franklin, Benjamin, 4»«. Frederick the Great, 70. French, Declarations of Rights, 3, 141, 145, 146, 1.50, 1.51, 1.58, 210, 211, 229. 230, 238, 239, 244, 245, 265, 272. See Appendix, 290-300. French Law, 41. Gallio,.169. Galton, F., 172h. Gamaliel, 194, Geneva, .50, .56, 1.53», 178, 220. George, Henry, 270, 271. Girondists 266. Godwin, William, 44, 165«. Gorgias, 21, 32. Gospels, The, 170, 171. Goths, 62. Gregory I., 44. Gregory VII., 220«, 240. Grote, George, 21, 23. Grotius, 37, 39, 83«, 90, 94, 241«, 268. Hallam, Henry, 198, 220h. Halsbury, Lord, 15. Hardy, E. G., 169. Hastie, Translation of 'Kant's Philoso- j)hii of Laic, 142. Hedonism, 114. See Utilitarianism, Hegel, 51, 66, 70«. Heme, Heinricli, 75h. Herbert, Auberon, 15, 187. Herodotus, 26. Hobbes. Thomas, 11, 14, 24, 25, 42, 83, 84, 123, 142, 245, 277. Hodgkin, T., 62n. Holland, 123. Holland. Prof., 78. Hood, Thomas, 125. Hooker, Richard, 39, 67, 176, 246. Hudson, Judge J. H., 141w. Hungary, 239. Huxley, Prof., 25, 267h, 275. Idaho, 208, 209. Independents, 184, 202. India, 169, 181h, 234, 236. International Law, 36, 123. Intuitionists, 36, 86, 88«. Ionia, 56. Ireton, 10, 255, 2.56. Italy, 57, 123, KUm. .Jacobin Club, 51, 127, 230, 265. James I., 138. Janet, Paul, quoted, 4«, 15«. Jefferson, Thoinas, 3, 45. Jesuits, 177, 180, 187, 188, 199, 240. Jews, 169, 218«, 240. Johnson, Samuel, 10, 114«, 152«, 195«. Jowett, Prof., 33/?, 49n. Jus Gentium, 36, 37. Jus Divinum VoiuntMrium, 83». Jus Naturale, see especially Chapter IL Justinian, 7, 38, 41. Kansas, 264. Kant, 34, 51, 72«, 141, 112. 192, 2.52, 2.53, 273/?, 285. Kentucky, 264w. Kepler, 72/?. Kidd, Benjamin, 111/?. Lafayette, 3. Laud, Abp., 164/?. 205. Lecky, W. H., 125/?, 127. Leo XIII., 270. Le Play, 63/?. INDEX 303 Lesley, Bishop, \lln. Leslie, T. E. Cliffe, 43«. Levellei-s, The, 9, 12. Lewis, Sir G. C, 136. Lilburn, John, 9. Littre, 71. Locke, John, 6, 11, 14, 24. 25, 39, 42, 51, 90-92, 94, 135, 142, 146, 154, 173- 176. 184, 185, 186, 198, 239, 246, 266, 268-270. Lorimer, Prof. J., 61w, 92, 94, 128w, 233. Lorraine, 234>«. Louis X. of France, 3S«. Louis XVI., 4«. Lowell, J. il., quoted, 236«. Luther, 90h. Lycophron, 25. Macaulay, Lord, 154. Machiavelli, 31. Mackay, Charles, 23l«. Maine, Sir H. S.,.16, 37, 38, 41, 95«, 104«, 268w. Manchester School, 65. Mansfield, Lord, 151. Martineau, Dr., 86. Maryland, 178. Massachusetts, 149, 178, 179«, 201, 256«. Massilia, 126. Michelet, Jules, 38h. Mill, J. S., 87, 94, 96, 114, 167, 249, 273. Milton, J., 44«, 152?«, 153, 154, 175. Mississippi, State of, 178, 24.5. Mohammedans, 22, 201. Montesquieu, 50. More, Sir Thomas, 126, 198, 201. Mormonism, 93, 160, 178, 196«, 202- 209. Morris, William, .58. Moyle, J. B., Editor of Justinian's Imtifutes, 41??. Muir, Thomas, Trial of, 256. Muirhead, Prof., 37h, 40??,. Natural Theology, 44, 45. Napoleon, 232. Neo-Platonism, 34, 72??. Nero, 164»?. Nettleship, Henrv, 37??. Neuchatol, 180??, 220. Nevada, 178. Newman, John Henry, 67, 189??. North Carolina, 178. " Normanism," 8. Nimrod, 43, 44??. O'Brien, M. D., 135. Orosiua, 62m. Orthodox (Greek) Church, 206??. Ostrogorski, Mights of Women, 260m. Paine, Thomas, 3, 12, 15, 16, 17, 21, 157, 158, 260. Party-government, 280. Pascal, 67. Patriotism, 279. Paul, the Apostle, 80??, 89, 168, 172??. Paulus, the Jurist, 268. Pennsylvania, 178, 184??. Persian War, 22. Personality, 102. Pessimism, 27, 128, 129, 282-284. Philadelphia Congress, 11. Philip of Hasse, 90??. Physiocrats, 45. Pitt, William, 165??. Pius v., 177. . Pius IX., 164. Plato, 14, 21, 23, 24, 25, 28, 29, 33, 35 56??, 65, 85, 101, 126, 136, 191, 262, 265, 285. Plymouth (New England), Colony of, 257. Pollock, Sir F., 168. Poland, 128, 232. Pope, Alexander, 26??, 43, 44, 45. Population question, 64, 127-134, 2-^5 231, 261, 262, 280. Poulton, E. B., 54??. Presbyterians, 174. 184, 202. Preston, Howard W., 11??. Price, Di-. Richard, 6. Progress, 111-114, 281. Protagoras, 21. Protestantism, 10, 13, 39, 43, 79, 90, 185. Providence, Colony of, 201, 202. Prussia, 234, 256. Pufendorf, 39. Punishment, 120-122. Puritans, The, 10, 13, 51, 177. Quakers, The, 180, 184, 201. Qainet, Edgar, 53. Ramsay, Prof. W. M., 169??. Rationalism, 13, 18, 27, 88, 185, 189. Referendum. See Switzerland. Reformation, Tte, 39, 43. 183, 277. Renaissance, The, 43, 277. Renan, E., 163??, 186. Rhode Island (U.S.A.), 4, 201. Rickaby, Father, 40, 88, 89, 90, 12t], • 162??, 163-166. Robertson, J. M., 101??. Robespierre, 1.5, 45, 51, 127, 265. Roman Catholics, 67, 79, 173-178. 181. Roman Emiiire, 7, 62??, 105, 149, 16.S, 169, 170, 177, 183. Roman Law, 36-39, 81. Rome, 11, 12??, 62??, 163??. Romans, The, 31, 35, 37, H'^, 39, 40, 41, 45. Rousseau, .L .T., 6, 11, 1.3, 2.5, 34. 39, 43, 44, 46, 48-51, 53, .56, .58, 68, 76, 87, 99, 176, 186, 240, 2-17. Rusk in, .Tolin, 57??, 68??. Russia, 6.5. 304 INDEX St. Just, 51. Salamis. 22. Salt, H.'S., 67, 6'^, lOS, 109, 110, 132«. Salter, W.M., 107«. Salvation Army, 180, 277«. Saxons, 57. Scholasticism, 42, 43. Schopenhauer, A., 1]0. Schurman, J. G., 160«. Scotland, 140 ; Free Church of, 220. Scotus, Joannes (Erigena), 71, 72«. Sellar, W. Y.. 57«. Shellej'. P. B.' 67. 69, 90w, 93, 94. Sidgwick. Henry, 89n, 97, 98, lOO. Slavery, 38, 103, 104, 247. Smith, Adam. 45. Smith, J. C, 195«. Smith, Joseph, 207. Socrates, 21. 32, 96, 114, 168, 183, 265. South Carolina, 141«. 178, 241, 242. Southey, R., 198. Sophists, The, 21-27, 29, 32, 41w, 182, 183. Sophocles, Antigone, 30. Spain, 187, 232. Spanish Conquests in America, 268«. Spencer, Herbert, 14, 15, 24, 45. 46, 113, 139. 141, 142, 187, 234«, 235«, Spinoza, 72, 84. 119, 233. [249. Stephen, Sir J.' F., 138. Stephenson, George, 59. Stewart, J. A., 28«. Stobseus, 25w. Stoics, The, 20, &4, 35, 36, 283. Strozzi, Philip, 125. Suarez, 42, 44. Swift, Dean, 138. Switzerland, 220. 232; Federal Con- stitution of, 178-180, 183, 240; The Referendum, 115, 116«, 281. See names of Cantons. Tacitus, 68, 135«. Tarde, G., 173w, 248h. Taylor, Jeremy, 67. Tennessee. 178. Tennyson. 67«, 285. Texas, 178. Thomas Aquinas, see Aquinas. Thoreau, H., 53. Thi-asymachus, 25. Ticino, 232. Timothy, Epistles to, 170w, 206». Tit^is, Epistle to, 162, 170«, 171. Tolstoi, Count, 161. Tuscany, 123. Ulpian, 88, 40, 41w, 76, 88, 245. Utah, 205, 207. Utilitarianism, 87, 93, 94-101, 249-251, 273. Vaud, 220, 232. Venice, 11 : Venetian Republic, 232. Vincent, Prof., 179«, 220. Virginia, 4, 5. 257 ; Declaration of Rights, 287-289 (Appendix). Voigt, Jus Naturale, etc., 37w, 41??. Voltaire, 15«, 26w, 7'Oh, 153, 197. Wallace, Prof. W., 284. Washington, George, 3. Watt, James, 59. Webb, Clement C. J., 72w. Webb, Mr. and Mrs. Sidney, 223h. Welldon, Dr., Translation of Ari!>t. FoL, 48». Weismann, Prof., 57. Westermarck, E., 92w. Whitman, Walt, 52«, 53, 56. 64. Williams, Roger. 201, 202. Wilson, Sir R. K., 136, 137. Wollstonecraft, Marv, 260. Women's Rights, 133, 134, 207, 257, 259-262. Wordsworth, W., 147. 232. Wycliffe, John, 7, 33.' Wyse, John, 14«. Xenophanes, 23. Zeller, 26«, 35«. Butler & Tanner The Selwood Printing Works, Fromc, and London. ^ :*?;.-r. AA 001 129 803 Library Bureau Cat. No. 1137 ^i. V ■ ■■ V A- -. ■; V, / ', .• : HR*»^'' :'r. .?■■"'' ^H^'.-e^v^.. -^^ ^^Bj<- ••^/>' ^^H'*. i"^ ^■I'Vi r. . ^K>-,'-/^; - '- ^^I^HE^ ' ^■■Rr ' w . mPijd>, * .rV ^;|il''-»'-|l, . Mv