the authority, by the hypothesis, does not exist. The other is that the end for which the authority exists, as thus specified, is the en- forcement of justice — the maintenance of equitable relations. The reasoning yields no warrant for other coercion over citizens than that which is required for preventing direct aggressions, and those i ndircct aggressions constituted by breaches of contract; to which, it* we add protection against external enemies, the entire function implied by Hobbes's derivation of sovereign authority is compre- hended.
Hobbes argued in the interests of absolute monarchy. His modern admirer, Austin, had for his aim to derive the authority of law from the unlimited sovereignty of one man, or of a number of men, small or large compared with the whole community. Austin was originally in the army; and it has been truly remarked that " the permanent traces left " may be seen in his Province of Jurisprudence. When, undeterred by the exasperating pedan- tries— the endless distinctions and definitions and repetitions — which serve but to hide his essential doctrines, we ascertain what these are, it becomes manifest that he assimilates civil authority to military authority: taking for granted that the one, as the other,, is above question in respect of both origin and range. To get justification for positive law, he takes us back to the absolute sovereignty of the power imposing it — a monarch, an aristocracy, or that larger body of men who have votes in a democracy; for such a body also, he styles the sovereign, in contrast with the remaining portion of the community which, from incapacity or other cause, remains subject. And having affirmed, or, rather,, taken for granted, the unlimited authority of the body, simple or compound, small or large, which he styles sovereign, he, of course,, has no difficulty in deducing the legal validity of its edicts, which he calls positive law. But the problem is simply moved a step further back and there left unsolved. The true question is — Whence the sovereignty? What is the assignable warrant for this unqualified supremacy assumed by one, or by a small number, or by a large number, over the rest? A critic might fitly say — " We will dispense with your process of deriving positive law from unlimited sovereignty: the sequence is obvious enough. But first prove your unlimited sovereignty."
To this demand there is no response. Analyze his assumption,, and the doctrine of Austin proves to ha"V'e no better basis than that G 82 THE MAN VERSUS THE STATE.
of Hobbes. In the absence of admitted divine descent op appoint- ment, neither single-headed ruler nor many-headed ruler can produce such credentials as the claim to unlimited sovereiguty implies.
"But surely," will come in deafening chorus the reply, "there is the unquestionable right of the majority, which gives un- questionable right to the parliam.ent it elects."
Yes, now we are coming down to the root of the matter. The divine right of parliaments means the divine right of majorities. The fundamental assumption made by legislators and people alike, is that a majority has powers to which no limits can be put. This is the current theory Avhich all accept Avithout proof as a self- evident truth. Nevertheless, criticism will, I think, show that this current theory requires a radical modification.
In an essay on "Railway Morals and Railway Policy,*' pub- lished in the Edinhun/h Review for October, 1854, I had occasion -to deal with the question of a majority's powers as exemplified in the conduct of public companies; and I cannot better prepare the -way for conclusions presently to be drawn, than by quoting a passage from it: — " Under whatever circumstances, or for whatever ends, a number of men co-operale, it is held that if ditference of opinion arises among them, justice requires that the will of the greater number shall be executed rather than that of the smaller number; and this rule is supposed to be uniformly applicable, be the question at issue what it may. So confirmed is this conviction, and so little have the ethics of the matter been con- sidered, that to most this mere suggestion of a doubt will cause some astonishment. Yet it needs but a brief analysis to show that the opinion is little better than a political superstition. Instances may readily be selected which prove, by reduciio ad absurd /nn, that the right of a majority is a purely conditional right, valid only within specific limits. Let us take a few. Su|)i)0se that at the general meeting of some philan- thropic association, it was resolved that, in addition to relieving distress tlie association should employ home-missionaries to preach down popery. Might the subscriptions of Catholics, who had joined the body with ^liaritable views, be rightfully used for this end? Suppose that of the iriembers of a book-club, the greater number, thinking that under existing circumstances rifle-practice was more important than reading, should decide to change the puri)ose of tlieir union, and to apply the funds in hand for the purclia.se of ])Owder, ball, and targets. Would the rest be bound by this decision? Suppose that under the excitement of news from THE GREAT POLITICAL SUPEKSTITIOX. 83 Australia, l:lie majority of a Freehold Land Society should determine, not simply to start in a body for the gold-diggings, but to use their acicnmulated capital to provide outfits. Would this appropriation of property be just U) the minority? and must these join the expedition? Scarcely anyone would venture an affirmative answer even to the first of these questions; iiiiich less to the others. And why? Because everyone must perceive that by uniting himself with others, no man can equitably be betrayed into acts utterly foreign to the purpose for which he joined them. Each of these supposed minorities would properly reply to those seeking to coerce them: — ' "We combined with you for a defined object; we gave money and time for the furtherance of that object; on all questions thence arising we tacitly agreed to conform to the will of the greater number; but we did not agree to conform on any other questions. If you induce us to join you by professing a certain end, and then undertake some other end of which we were not apprised, you obtain our support under false pre- tences; you exceed the expressed or understood compact to which we committed ourselves; and we are no longer bound by your decisions.'
Clearly this is the only rational interpretation of the matter. The general principle underlying the right government of every incorporated body, is, that its members contract with each other severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are incorporated; but in no others. To this extent only can the contract hold. For as it is implied in the very nature of a contract, that those entering into it must know what they contract to do; and as those who unite with others for a specified object, cannot oontemplate all the unspecified objects which it is hypothetically possible for the union to undertake; it follows that the contract entered into cannot extend to such unspecified objects. And if there exists no expressed or understood contract between the union and its members respecting unspecified objects, then for the majority to coerce the minority into undertaking them, is nothing less than gross tyranny."
Naturally, if such a confusion cf ideas exists in respect of the powers of a majority where the deed of incorporation tacitly limits those powers, still more must there exist such a confusion where there has been no deed of incorporation. Nevertheless tlie same principle holds. I again emphasize the proposition that the members of an incorporated body are bound " severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are incoryorated; hut in no others.''' And 1 contend that this holds of an incorporated nation as mucii as of an incorporated company.
"Yes, but," comes the obvious rejoinder, "as there is no deed \)j which the members of a nation are incorporated —as therg 84 THE MAN VERSUS THE STATS.
neither is, nor ever was, a specification of purposes for wliieh the anion was formed, there exist no limits; and, consequently, tho power of the majority is unlimited."
Evidently it must bo admitted that the hypothesis of a social contract, either under the shape assumed by Hobbes or under tlio shape assumed by Rousseau, is baseless. Nay more, it must be admitted that even had such a ooutract once been formed, it could not be bindmg on the posterity of those who formed it. Moreover, if any say that in the absence of those limitations to its powers which a deed of incorporation might imply, there is nothing to prevent a majority from imposing its will on a minority by force^ assent must be given — an assent, however, joined with the com- ment that if the superior force of the majority is its justification^ then the superior force of a despot backed by an adequate army, is also justified: the problem lapses. What we here seek is some higher warrant for the subordination of minority to majority than that arising from inability to resist physical coercion. Even Austin, anxious as he is to establish the unquestionable authority of positive law, and assuming, as he does, an absolute sovereignty of some kinil, monarchic, aristocratic, constitutional, or popular, a* the source of its unquestionable authority, is obliged, in the last resort, to admit a moral limit to its action over the community.
While insisting, in pursuance of his rigid theory of sovereignty, that a sovereign body originating from the people '"is legally free to abridge their political liberty, at its own pleasure or discre- tion," he allows that "a government may be hindered hy positive morality from abridging the political liberty which it leaves or grants to its subjects."* Hence, we have to fiind, not a physical justification, but a moral justification, for the supposed absolute power of the majority.
This will at once draw forth the rejoinder — " Of course, in the absence of any agreement, Avith its implied limitations, the rule of the majority is unlimited; because it is more just that the majority should have its way than that the minority should have its way." A very reasonable rejoinder this seems until there comes the re-rejoinder. We may oppose to it the equally tenable proposition that, in the absence of an agreement, the supremacy of a majority over a minority docs not exist at all. It is co-operation of some kind, from which there arise these powers and obligations of H The Province of Jwiaprudence Determined (second cdilion), p. 2-4L THE GKEAT POLITICAL SUrERSTITION. 85 anajority and minority; and in the absence of any aorreemcnt to ■co-operate, such powers and obligations are also absent.
Here the argument apparently ends in a dead lock. Under the ■existing condition of things, no moral origin seems assignable either for the sovereignty of the majority or for the limitation of its sovereignty. But further consideration reveals a solution of the difficulty. For if, dismissing all thought of any hypothe- tical agreement to co-operate heretofore made, we ask what would be the agreement into which citizens would now enter with practical unanimity, we get a sufficiently clear answer; and with it a sufficiently clear justification for the rule of the majority inside a certain sphere, but not outside that sphere. Let US first observe a few of the limitations which at once become apparent.
Were all Englisbmeii now asked if they would agree to co-operate for the teaching of religion, and would give the majority power to fix the creed and the forms of worship, there would come a very emphatic '' No " from a large part of them. If, in pursuance of a proposal to revive sumptuary laws, the inquiry were made whether they would bind themselves to abide by the will of the majority in respect of the fashions and qualities of their clothes, nearly all of them would refuse. In like manner if. (to take an p.ctnal question of the day) people were polled to ascertain whether, in respect of the beverages they drank, they would accept the decision of the greater number, certainly half, and probably more than half, would be unwilling. Similarly with respect to many other actions which most men now-a-days regard as of purely private concern. Whatever desire there might be to co' operate for carrying on, or regulating, such actions, would be far from a unanimous desire. Manifestly, then, had social co-opera- tion to be commenced by ourselves, and had its purposes to be specified before consent to co-operate could be obtained, there would be large parts of human conduct in respect of which co- operation would be declined; and in respect of which, consequently, no authority by the majority over the minority could be rightfully exercised.
Turn now to the converse question — For what ends would all men agree to co-operate? None will deny that for resisting invasion the agreement would be practically unanimous. Excepting only the •Quakers, who, having done highly useful work in their time, are t^6 THE MAN VF.RSCS THE STATE.
now dying out, all would unite for defensive war (not, however, for offensive war); and they would, by so doing, tacitly bind themselves to conform to the will of the majority in respect of measures directed to that end. There would be practical unanimity, also, in the agree- ment to co-operate for defence against internal enemies as against external enemies. Omitting criminals, all must wish to have person and. property adequately protected. In short, each citizen desires io preserve liis life, to preserve those things which conduce to maintenance of his life and enjoyment of it, and to preserve intact his liberties both of using these things and getting further such. It is obvious to him that he cannot do all this if he acts alone. Against foreign invaders he is powerless unless he combines with his fellows; and the business of protecting himself against domestic invaders, if he did not similarly combine, would be alike onerous, dangerous, and inefficient. In one other co-operation all are interested — use of the territory they inhabit. Did the primitive communal ownership survive, there would survive the primitive communal control of the uses to be made of land by individuals or by groups of thera; and decisions of the majority would rightly prevail respecting the terms on which portions of it might be employed for raising food, for making means of communication, and for other purposes. Even at present, though the matter has been complicated by the growth of private landovvnership, yet, since the State is still supreme owner (every landowner being in law a tenant of the Crowm) able to resume possession, or authorize com- pulsory purchase, at a fair price; the implication is that the will of the majority is valid respecting the modes in which, and con- ditions under which, parts of the surface or sub-surface, may be utilized: involving certain agreements made on behalf of tho public with private persons and companies.
Details are not needful here; nor is it needful to discuss that border region lying between these classes of cases, and to say how- much is included in the last and how much is excluded with the first. For present purposes, it is sufficient to recognize the un- deniable truth that there are numerous kinds of actions in respect of which men would not, if they were asked, agree with anything like unanimity to be bound by the will of the majority; while there are some kinds of actions in respect of which they would almost unanimously agree to be thus bound. Here, then, we fi.nd a definite warrant for enforcing the will of the majority within cer- THE GREAT POLITICAL SUPERSTITION. 87 tain limits, and a definite warrant for denying the authority of its will beyond those limits.
But evidently, when analyzed, the question resolves itself into the further question — What are the relative claims of the aggre- gate and of its units? Are the rights of the community univer- sally valid against the individual? or has the individual some rights which are valid against the community? The judgment given on this point underlies the entire fabric of political con- victions formed, and more especially those convictions which concern the proper sphere of government. Here, then, I propose to revive a dormant controversy, with the expectation of reaching a different conclusion from that which is fashionable.
Says Professor Jevons, in his work, The State in Eelation to Labour, — " The first step must be to rid our minds of the idea that there are any such things in social matters as abstract rights." Of like character is the belief expressed by Mr. Matthew Arnold^ in his article on copyright:—" An author has no natural right to a property in his production. But then neither has he a natural right to anything whatever which he may produce or acquire."* So, too, I recently read in a weekly journal of high repute, that "to explain once more that there is no such thin^ as 'natural right ' would be a waste of philosophy." And the view expressed in these extracts is commonly uttered by statesmen and lawyers in a way implying that only the unthinking masses hold any- other.
One might have expected that utterances to this effect wouhi have been rendered less dogmatic by the knowledge that a whole school of legists on the Continent, maintains a belief diametrically opposed to that maintained by the English school. The idea of Natur-recht is the root-idea of German jurisprudence. Now what- ever may be the opinion held respecting German philosophy at large, it cannot be characterized as shallow. A doctrine current among a people distinguished above all others as laborious in- quirers, and certainly not to be classed with superficial thinkers, should not be dismissed as though it were nothing more than a popular delusion. This, however, by the way. Along with the proposition denied in the above quotations, there goes a counter- 88 THE MAN VERSUS THE STATE.
proposition affirmed. Let us see what it is; and what results when we go behind it and seek its warrant.
On reverting to Bentham, we find this counter-proposition overtly expressed. He tells us that government fulfils its office *'bv creating riijhts which it confers upon individuals: rights of personal security; rights of protection for honour; rights of pro- perty; " &c* Were this doctrine asserted as following from the divine right of kings, there would be nothing in it manifestly in- congruous. Did it come to us from ancient Peru, where the Ynca *' was the source from which everything flowed •,"t or from Shoa (Abyssinia), where " of their persons and worldly substance he [the king] is absolute master;":}: or from Dahome, where " all men are slaves to the king; "§ it would be consistent enough. But Bentham, far from being an absolutist like Hobbes, wrote in the interests of popular rule. In his Constitutional Code || he fixes the sovereignty in the whole people; arguing that it is best " to give the sovereign power to the largest possible portion of those whose greatest happiness is the proper and chosen object," because " this proportion is more apt than any other that can be proposed " for achievement of that object.
Mark, now, what happens when we put these two doctrines together. The sovereign people jointly appoint representatives, and so create a government; the government thus created, creates rights; and then, having created rights, it confers them on the separate members of the sovereign people by which it was itself created. Here is a marvellous piece of political legerdemain! Mr. Matthew Arnold, contending, in the article above quoted, that " property is the creation of law," tells us to beware of the "metaphysical phantom of property in itself." Surely, among metaphysical phantoms the most shadowy is this which supposes a thing to be obtained by creating an agent, which creates the thing, and then confers the thing on its own creator!
From whatever point of view we consider it, Bentham's pro- position proves to be unthinkable. Government, he says, fulfils itsoffice "by creating rights" Two meanings may be given to t Prcscott, Conquest of Pent, bk. i. ch. i.
X Harris, Highlands of Ethiopia, ii. 94.
§ Burton, Mission to Gelele, King of Dahome^ i. p. 226.
II Bentham's Works, vol. ix. p. 07 THE GREAT POLITICAL SUPERSTITION. 89 the word *' creating." It may be supposed to mean the production of something out of nothing; or it may be supposed to mean the giving form and structure to something which already exists. There are many who think that the production of something out of nothing cannot be conceived as effected even by omnipotence: and probably none will assert that the production of something out of nothing is within the competence of a human government. The alternative coni^eption is that a human government creates only in the sense that it shapes something pre-existing. In that case, the question arises — " What is the something pre-existing which it shapes? " Clearly the word "creating " begs the whole question — passes off an illusion on the unwary reader. Bentham was a stickler for definiteness of expression, and in his Booh of Fallacies has a chapter on " Impostor-terms." It is curious that he should have furnished so striking an illustration of the per- verted belief which an impostor-term mny generate.
But now let us overlook these various impossibilities of thought, and seek the most defensible interpretation of Bentham's view.
It may be said that the totality of all powers and rights, originally existed as an undivided whole in the sovereign people; and that this undivided whole is given in trust (as Austin would say) to a ruling power, appointed by the sovereign people, for the purpose of distribution. If, as we have seen, the proposition that rights are created is simply a figure of speech; then the only intelligible construction of Bentham's view is that a multitude of individuals, who severally wish to satisfy their desires, and have, as an aggregate, possession of all the sources of satisfaction, ag well as power over all individual actions, appoint a government, which declares the ways in which, and the conditions under which, individual actions may be carried on and the satisfactions obtained. Let us observe the implications. Each man exists in two capacities. In his private capacity he is subject to the government. In his public capacity he is one of the sovereign people who appoint the government. That is to say, in his private capacity he is one of those to whom rights are given; and in his public capacity he is one of those who, through the government they appoint, give the rig-hts. Turn this abstract statement into a concrete statement, and see what it means. Let the community consist of a million men, who, by the hypothesis, are not only joint possessors of the inhabited region, but joint possessors of all liberties of