90 THE MAN VK/iSUS THE ST. IE.
action and appropriation: tlie only right recognized being that of the aggregate to everytliing. What Ibllows? Each person, while not owning any product of his own labour, has, as a unit in the sovereign body, a millionth part of the ownership of the products of all others' labour. This is an unavoidable implication. As tht government, in Bentham's view, is but an agent; the rights it 'jojifers are rights given to it in trust by the sovereign people. H so, such rights must be possessed en bloc by the sovereign people before the government, in fulfilment of its trust, confers them on individuals; and, if so, each individual has a millionth portion of these rights in his public capacity, while he has no rights in his private capacity. These he gets only when all the rest of the million join to endow him with them; while he joins to endow with them every other member of the million!
Thus, in whatever way we interpret it, Be'htham's proposition leaves us in a plexus of absurdities.
Even though ignoring the opposite opinion of German writers on jurisprudence, and even without an analysis which proves their own opinion to be untenable, Bentham's disciples might have beevi led to treat less cavalierly the doctrine of natural rights. For sundry groups of social phenomena unite to prove that this doctrine is well warranted, and the doctrine they set against it unwarranted.
Tribes in various parts of the world show us that before definite government arises, conduct is regulated by customs. The Bechuanas are controlled by " long acknowledged customs." * Among the Koranna Hottentots, who only "tolerate their chiefs rather than obey them,"t " when ancient usages are not in the way. every man seems to act as is right in his own eyes. "J The Araucanians are' guided by "nothing more than primordial usages or tacit conventions. "§ Among the Kirghizes the judgments of the elders are based on " universally-recognized customs. "|| So, * Burchell, W. J., Travels into the Interior of Southern Africa, vol. i.
t Arboussot and Daumas, Voyage of Exploration, p. 27.
X Thompson, G-., Travels and Adventures in Southern Africa, vol. ii., p. 30.
§ Thompson, G. A., Alcedo's Geographical and Historical Dictionary of America, vol. i. p. 405.
II Mitchell, Alex., Siberian Overland Route, p. 213, THE GREAT POLITICAL SUPERSTITION. 91 too, of tlie Dyaks, Rajah Brooke tells ns that "custom seems simply to have become the law; and breaking custom leads to a fine."* So sacred are immemorial customs with the primitive man, that he never dreams of questioning their authority; and when government arises, its power is limited by them. In Mada- gascar the king's word suffices only " where there is no law, custom, or precedent."t Raffles tells us that in Java "the customs of the country "J restrain the will of the ruler. In Sumatra, too, the people do not allow their chiefs to " alter their ancient usages. "§ Nay, occasionally, as in Ashantee, " the attempt to change some customs" has caused a king's dethrone- ment. || Now, among the customs which we thus find to be pre- governmental, and which subordinate governmental power when it is established, are those which recognize certain individual rights — rights to act in certain ways and possess certain things. Even where the recognition of property is least developed, there is proprietorship of weapons, tools, and personal ornaments; and, generally, the recognition goes far beyond this. Among such North-American Indians as the Snakes, who are without govern- ment, there is private ownership of horses. Bj^the Chippewayans, " who have no regular government," game taken in pi-ivate traps *' is considered as private property."^ Kindred facts concerning huts, utensils, and other personal belongings, might be brought in evidence from accounts of the Ahts, the Comanches, the Esqui- maux, and the Brazilian Indians. Among various uncivilized peoples, custom has established the claim to the crop grown on a cleared plot of ground, though not to the ground itself; and the Todas, who are wholly without political oi^ganization, make a like distinction between ownership of cattle and of land. Kolff's statement respecting " the peaceful Arafuras " well sums up the evidence. They "recognize the right of property, in the fullest sense of the word, without there being any [other] authority among them than the decisions of their elders, according to the * Brooke's, C, Ten Tears in Sarawak, voL i. p. 129. t Ellis, History of Madagascar, voL i. p. 377. X Raffles, Sir T. S., History of Java, i. 274. § Marsden, W.. History of Sumatra, p. 217. II Beecham, J., Ashantee and the Gold Coast, p. 90.
^ Schoolcraft, H. R., 'Expedition to the Sources of the MIs.si.ssippi Ritvr^ 92 THE MAN VEnSUS THE STATE.
customs of fclieir forefathers."* But even without seeking proa's among the uncivilized, sufliclent proofs are furnished hj early stages of the civilized. Benthara and liis followers seem to have forgotten that our own common law is mainly an embodiment of " the customs of the realm." It did but give definite shape to that which it found existing. Thus, the fact and the fiction are exactly opposite to what they allege. The fact is that propeity was well recognized before law existed; the fiction is that " pro- perty is the creation of law."
Considerations of another class might alone have led them to pause had they duly considered their meanings. Were it true, as alleged by Bentham, that Government fulfils its office " by creating rights which it confers on individuals; '* then, the implication would be, that there should be nothing approaching to uniformity in the rights conferred by different governments. In the absence of a determining cause over-ruling their decisions, the probabilities would be many to one against considerable correspondence among their decisions. But there is very great correspondence. Look where we may, we find that governments interdict the same kinds of aggressions; and, by implication, recognize the same kinds of claims. They habitually forbid homicide, theft, adultery: thus asserting that citizens may not be trespassed against in certain ways. And as society advances, minor individual claims are protected by giving remedies for breach of contract, libel, false witness, &c. In a word, comparisons show that though codes of law differ in their details as they become elaborated, they agree in their fundamentals. What does this prove? It cannot be by chance that they thus agree. They agree because the alleged creating of rights was nothing else than giving formal sanction and better definition to those assertions of claims and recognitions of claims which naturally originate from the individual desires of men who have to live in presence of one another.
Comparative Sociology discloses another group of facts having the same implication. Along with social progress it becomes in an increasing degree the business of the State, not only to give formal sanction to men's rights, but also to defend them against aggressors. Before permanent government exists, and in many cases after it is considerably developed, the rights of each individuaJ • Earl's Koljjr's Voyage of the Domaa, n ICl.
THE GREAT POLITICAL SUPERSTITION. 93 are asserted and maintained by himself, or by his family. Alike umong savage tribes at present, among civilized peoples in the- past, and even now in unsettled parts of Europe, the punishment for murder is a matter of private concerii: " the sacred duty of blood revenge " devolves on some one of a cluster of relatives. Similarly, comiDcnsations for aggressions on property and for in- juries of other kinds, are in early states of society independently sought by each n)an or family. Bat as social organization advances, the central ruling power undertakes more and more to- secure to individuals their personal safety, the safety of their possessions, and, to some extent, the enforcement of their claims established by contract. Originally concerned almost exclusively with defence of the society as a whole against other societies, or Avith conducting its attacks on other societies, Government has- come more and more to discharge the function of defending in- dividuals against one another. It needs but to recall the days when men habitually carried weapons, or to bear in mind the greater safety to person and property achieved by improved police- administration durino: our own time, or to note the increased facilities now given for recovering small debts, to see that the insuring to each individual the unhindered pursuit of the objects- of life, within limits set by others' like pursuits, is more and more recognized as a duty of the State. In other words, along with social progress, there goes not only a fuller recognition of these which we call natural rights, but also a better enforcement of them by Government: Government becomes more and more the servant to these essential pre-requisites for individual welfare.
An allied and still more significant change has accompanied this. In early stages, at the same time that the State failed to protect the individual against aggression, it was itself an aggressor in multitudinous ways. Those ancient societies which progressed enough to leave records, having all been conquering societies, show us everywhere the traits of the militant regime. As, for the effec- tual organization of fighting bodies, the soldiers, absolutely obedient, must act independently only when commanded to do it; so, for the cff'ectual organization of fighting societies, citizens must have their individualities subordinated. Private claims are over-ridden by public claims; and the subject loses much of his freedom of action. One result is that the system of regimentation, pervading the society as well as the army, causes detailed reguhition of conducts 'J4 THE MAN VERSUS THE STATE.
The dictates of the ruler, sanctified by ascription of them to his divine ancestor, are unrestrained by any conception of individual liberty; and they specify men's actions to an unlimited extent — down to kinds of food eaten, modes of preparing them, shaping of beards, fringing of dresses, sowing of grain, &c. This omnipresent control, which the ancient Eastern nations in general exhibited, was exhibited also in large measure by the Greeks; and was carried to its greatest pitch in the most militant city, Sparta. Similarly during mediaeval days throughout Europe, characterized by chronic warfare with its appropriate political forms and ideas, there were scarcely any bounds to Governmental interference: agriculture, manufactures, trade, were regulated in detail; religious beliefs and observances were imposed; and rulers said by whom alone furs might be worn, silver used, books issued, pigeons kept, &c. &c. But along with increase of industrial activities, and implied substi- tution of the regime oi contract for the regime oi status, and growth of associated sentiments, there went (until the recent reaction nccompanying reversion to militant activity) a decrease of meddling with people's doings. Legislation gradually ceased to regulate the cropping of fields, or dictate the ratio of cattle to acreage, or s^pecify modes of manufacture and materials to be used, or fix wages and prices, or interfere with dresses and games (except where there was gambling), or put bounties and penalties on im- ports or exports, or prescribe men's beliefs, religious or political, or prevent them from combining as they pleased, or travelling vvhere they liked. That is to say, throughout a large range of conduct, the right of the citizen to uncontrolled action has been made good against the pretensions of the State to control him. While the ruling agency has increasingly helped him to exclude intruders from that private sphere in which he pursues the objects of life, it has itself retreated from that sphere; or, in other words — decreased its intrusions.
Not even yet have we noted all the classes of facts which tell the same story. It is told afresh in the improvements and reforms of law itself; as well as in the admissions and assertions of those who have effected them. " So early as the fifteenth century," says Professor Pollock, "we find a common-law judge declaring that, as in a case unprovided for by known rules the civilians and canonists devise a new rule according to ' the law^ of nature which is the ground of all laws,' the Courts of Westminster can and wiU THE GREAT POLITICAL SLTEUSTITION. 95 do the like."* Again, our system of Equity, introduced and deve- loped as it was to make up for the shortcomings of Common- law, or rectify its inequities, proceeded throughout on a recognition of men's claims considered as existing apart- from legal warrant. And the changes of law now from time to time made after resistance, are similarly made in pursuance of current ideas concerning the requirements of justice: ideas which, instead of being derived from the law, are opposed to the law. For example, that recent Act which gives to a married woman a riglit of property in her own earnings, evidently originated in the consciousness that the natural connexion between labour expended and benefit enjoyed, is one which should be maintained in all cases. The reformed law did not create the right, but recognition of the right created the reformed law.
Thus, historical evidences of five different kinds unite in teaching that, confused as are the popular notions concerning rights, and including, as they do, a great deal which should be excluded, yet they shadow forth a truth.
It remains now to consider the original source of this truth. In a previous paper I have spoken of the open secret, that there can V>e no social phenomena but what, if we analyze them to the bottom, bring us down to the laws of life; and that there can be no true understanding of them without reference to the laws of life. Let us, then, transfer this question of natural rights from the court of politics to the court or iscience — the science of life. The reader need feel no alarm: its simplest and most obvious facts will suffice. We will contemplate first the general conditions to indi- vidual life; and then the general conditions to social life. "We shall find that both yield the same verdict.
Animal life involves waste; waste must be met by repair; re- pair implies nutrition. Again, nutrition presupposes obtainment of food; food cannot begot without powers of prehension, and, usually, of locomotion; and that these powers may achieve their ends, tliere must be freedom to move about. If you shut up a mammal in a small space, or tie its limbs together, or take from it the food it has procured, you eventually, by persistence in one or other of these courses, cause its death. Passing a certain jooint, hindrance to the * "The Metliocls of Jurisprndoncc: an Ic.troductory Lc-tiirc at University College, London," October 31. 1882.
96 THE MAN VEIiSUS THE STATE.
fulfilment of these requirements is fatal. And all this, which holds of the higher animals at large, of course holds of man.
If we adopt pessimism as a creed, and with it accept the impli- cation that life in general being an evil should be put an end to, then there is no ethical warrant for these actions by which life is maintained: the whole question drops. But if we adopt either the optimist view or the meliorist view — if we say that life on tho whole brings more pleasure than pain; or thai it is on the way to become such that it will yield more pleasure than pain; then these actions by which life is maintained are justified, and there results a warrant for the freedom to perform them. Those who hold that life is valuable, hold, by implication, that men ought not to be prevented from carrying on life-sustaining activities. In other words, if it is said to be " right " that they should carry them on, then, by permutation, we get the assertion that they " have a right" to carry them on. Clearly the conception of " natural rights "" originates in recognition of the truth that if life is justifiable, there must be a justification for the performance of acts essential to its preservation; and, therefore, a justification for those liberties and claims which make such acts possible.
But being true of other creatures as of man, this is a proposi- tion lacking ethical character. Ethical character arises only with the distinction between what the individual may do in can-ying or his life-sustaining activities, and what he may not do. This dis- tinction obviously results from the presence of his fellows. Among those who are in close proximity, or even at some distance apart, the doings of each are apt to interfere with the doings of others; and in the absence of proof that some may do what they will without; limit, while others may not, mutual limitation is necessitated. The non-ethical form of the right to pursue ends, passes into the ethicaJ form, when there is recognized the difference between acts which can be performed v.'ithout transgressing the limits, and others which cannot be so performed.
This, which is the d priori conclusion, is the conclusion yielded d poster tori, yvhen we study the doings of the uncivilized. In its- vaguest form, mutual limitation of spheres of action, and the ideas and sentiments associated with it, are seen in the relations of groups to one another. Habitually there come to be established, certain bounds to the territories within which each tribe obtains its liveli- hood; and these bounds, when not respected, arc defended. Among- THE GREAT POLITICAL SUPERSTITION. 97 the Wood-Veddahs, who have no political organization, the small .clans have their respective portions of forest; and " these conven- tional allotments are always honourably recognized."* Of the ungoverned tribes of Tasmania, we are told that " their hunting grounds were all determined, and trespassers were liable to :f».ttack."t And, manifestly, the quarrels caused among tribes by intrusions on one another's territories, tend, in the long run, to fix bounds and to give a certain sanction to them. As with each in- habited area, so with each inhabiting group. A death in one, rightly or wrongly ascribed to somebody in another, prompts "the sacred duty of blood-revenge; " and though retaliations are thus made chronic, some restraint is put on new aggressions. Like causes worked like effects in those early stages of civilized societies, during which families or clans, rather than individuals, were the political units; and during which each family or clan had to maintain itself and its possessions against others such. This mutual restraint, which in the nature of things arises between small communities, similarly arises between individuals in each com- munity; and the ideas and usages appropriate to the one are more or less appropriate to the other. Though within each group there is ever a tendency for the stronger to aggress on the weaker; yet, in most cases, consciousness of the evils resulting from p.ggressivo conduct serves to restrain. Everywhere among pri«iitive peo^jles, trespasses are followed by counter-trespasses. Says Turner of the Tannese, " adultery and some other crimes are kept in check by the fear of club-law. ";]: Fitzroy tells us that the Patagonian, "if he does not injure or offend his neighbour, is not interfered with by others: "§ personal vengeance being the penalty for injury. We read of the Uaupes that " they have very little law of any kind; but what they have is of strict retaliation, — an eye for an eye and a tooth for a tooth." || And that the lex talioim tends to establish a distinction between what each member of the community may safely do and what he may not safely do, and consequently to give sanctions to actions within a certain range but not beyond that range, is obvious. Though, says Schoolcraft of the Chippewayans, ihQj " have no regular government, as every man is lord in his * Tennant, Ceylon; an Account of the Island, Sfc, ii. 440.
+ Bonwick, J., Daily Life and Origin of the Tasmanians, 83.
X Polynesia, p. 86.
§ Voyages of the Adventure and Beagle, ii. 167.
II Wallace, A. R., Travels on Amazon and Rio Negro, p. '193.
u 98 THE MAX VEnSUS THE STATE.
own family, they are influenced more or less by certain principles- which conduce to their general benefit: "* one of the principles named being recognition of private property.
How mutual limitation of activities originates the ideas and sentiments implied by the phrase " natural rights," we are shown most distinctly by the few peaceful tribes which have either nominal governments or none at all. Beyond those facts which illustrate scrupulous regard for one another's claims among tha Todas, Santals, Lepchas, Bodo, Chakmas, Jakuns, Arafuras, &c., we have the fact that the utterly uncivilized Wood-Veddahs,. without any social organization at all, " think it perfectly incon- ceivable that any person should ever take that which does not belong to him, or strike his fellow, or say anything that is- untrue."t Thus it becomes clear, alike from analysis of causes and observation of facts, that while the positive element in the right to carry on life-sustaining activities, originates from the laws of life, that negative element which gives ethical character to it,, originates from the conditions produced by social aggregation.
So alien to the truth, indeed, is the alleged creation of rights by government, that, contrariwise, rights having been established more or less clearly before government arises, become obscured as- government develops along with that militant activity which, both by the taking of slaves and the establishment of ranks, produces- status; and the recognition of rights begins again to get definite- ness only as fast as militancy ceases to be chronic and govern- mental power declines.
When we turn from the life of the individual to the life of the Bociety, the same lesson is taught us.
Though mere love of companionship prompts jjrimitive men tc live in groups, yet the chief prompter is experience of the advan- tages to be derived from co-operation. On what condition only can Co-operation arise? Evidently on condition that those who join their efforts severally gain by doing so. If, as in the simplest oases, they unite to achieve something w^hich each by himself can- not achieve, or can achieve less readily, it must be on the tacit understanding, either that they shall share the benefit (as wheD- * Schoolcraft. ^Expedition to the Sources of the Mississippi, v. 177. t B. F. Hai'tshorne, Fortnightly Review^ March 1876. See also H. C. Sirr^. Ceylon and the Ceylonese^ ii. 219, THE GREAT POLITICAL SUPEESTITIOX. yy erarae is caught by a party of them) or that if one reaps all the benefit now (as in building a hut or clearing a plot) the others shall severally reap equivalent benefits in their turns. When, instead of efforts joined in doing the same thing, different things are effected by them — when division of labour arises, with accom- panying barter of products, the arrangement implies that each, in return for something which he has in superfluous quantity, gets an approximate equivalent of something which he wants. If he hands over the one and does not get the other, future proposals to exchange will meet with no response. There will be a reversion to that rudest condition in which each makes everything for him- self. Hence the possibility of co-operation depends on fulfilment of contract, tacit or overt.
Now this which we see must hold of the very first step towards that industrial organization by which the life of a society is main- tained, must hold more or less fully throughout its development. Though the militant type of organization, with its system of status produced by chronic war, greatly obscures these relations of con- tract, yet they remain partially in force. They still hold between freemen, and between the heads of those small groups which form the anits of early societies; and, in a measure, they still hold within theso small groups themselves; since survival of them as groups, implies such recognition of the claims of their fhembers, even when slaves, that in return for their labours they get sufficiencies of food, clothing, and protection. And when, with diminution of warfare and growth of trade, voluntary co-operation more and more replaces compulsory co-operation, and the carrying on of social life by exchange under agreement, partially suspended for a time, gradually re-establishes itself; its re -establishment makes possible that vast elaborate industrial organization by which a ^reat nation is sustained.
For in proportion as contracts are unhindered and the perform- ance of them certain, the growth is great and the social life active. It is not now by one or other of two individuals who con- tract, that the evil effects of breach of contract are experienced. In an advanced society, they are experienced by entire classes of producers and distributors, which have arisen through division of labour; and, eventually, they are experienced by everybody. Ask on what condition it is that Birmingham devotes itself to manu- facturing hardware, or part of Staffordshire to making pottery, or 100 THE MAN VERSUS THE STATE.
Larxcasliire txD weaving cotton. Ask how the rural people who here grow wheat and there pasture cattle, find it possible to occupy themselves in their special businesses. These groups can sevei-ally thus act only if each gets from the others in exchange for its own surplus product, due shares of their surplus products. No longer directly effected by barter, this obtainment of their respective shares of one another's products is indirectly effected by money; and if we ask how each division of producers gets its due amount of the required money, the answer is — by fulfilment of contract. If Leeds makes woollens and does not, by fulfilment of contract, receive the means of obtaining from agricultural districts the needful quantity of food, it must starve, and stop producing woollens. If South Wales smelts iron and there comes no equi- valent agreed upon, enabling it to get fabrics for clothing, its industry must cease. And so throughout, in general and in detail. That mutual dependence of parts which we see in social organization, as in individual organization, is possible only on con- dition that while each part does the particular kind of Avork it has become adjusted to, it receives its proportion of those materials required for repair and growth, which all the other parts have