"Project For A New Theory
Of Civil And Criminal Legislation"
When I was about fourteen (as long ago as the year 1792), in consequence of a dispute, one day after coming out of meeting, between my father and an old lady of the congregation, respecting the repeal of the Corporation and Test Acts and the limits of religious toleration, I set about forming in my head (the first time I ever attempted to think) the following system of political rights and general jurisprudence.
It was this circumstance that decided the fate of my future life; or rather, I would say it was from an original bias or craving to be satisfied of the reason of things, that I seized hold of this accidental opportunity to indulge in its uneasy and unconscious determination. Mr. Currie, my old tutor at Hackney, may still have the rough draught of this speculation, which I gave him with tears in my eyes, and which he good-naturedly accepted in lieu of the customary themes, and as a proof that I was no idler, but that my inability to produce a line on the ordinary school topics arose from my being involved in more difficult and abtruse matters. He must smile at the so oft-repeated charge against me of florid flippancy and tinsel. If from those briars I have since plucked roses, what labour has it not cost me? The Test and Corporation Acts were repealed the other day. How would my father have rejoiced if this had happened in his time, and in concert with his old friends Dr. Price, Dr. Priestly, and others! but now that there is no one to care about it, they give us a boon to indifference what they so long refused to justice, and thus ascribed by some to the liberality of the age! Spirit of contradiction! when wilt thou cease to rule over sublunary affairs, as the moon governs the tides? Not till the unexpected stroke of a comet throws up a new breed of men and animals from the bowels of the earth; nor then neither, since it is included in the very idea of all life, power, and motion. For and against are inseparable terms. But not to wander any farther from the point--
I began with trying to define that a right meant; and this I settled with myself was not simply that which is good or useful in itself, but that which is thought so by the individual, and which has the sanction of his will as such. 1. Because the determining what is good in itself is an endless question. 2. Because one person's having a right to any good, and another being made the judge of it, leaves him without any security for its being exercised to his advantage, whereas self-love is a natural guarantee for our self-interest. 3. A thing being willed is the most absolute moral reason for its existence: that a thing is good in itself is no reason whatever why it should exist, till the will clothes it with a power to act as a motive; and there is certainly nothing to prevent this will from taking effect (no law or admitted plea above it) but another will opposed to it, and which forms a right on the same principle. A good is only so far a right, inasmuch as it virtually determines the will; for a right meant that which contains within itself, and as respects the bosom in which it is lodged, a cogent and unanswerable reason why it should exist. Suppose I have a violent aversion to one thing and as strong an attachment to something else, and that there is no other being in the world but myself, shall I not have a self-evident right, full title, liberty, to pursue the one and avoid the other? That is to say, in other words, there can be no authority to interpose between the strong natural tendency of the will and its desired effect, but the will of another. It may be replied that reason, that affection, may interpose between the will and the act; but there are motives that influence the conduct by first altering the will; and the point at issue is, that these being away, what other principle or lever is there always left to appeal to, before we come to blows? Now, such a principle is to be found in self-interest; and such a barrier against the violent will is erected by the limits which this principle necessarily sets to itself in the claims of different individuals. Thus, then, a right is not that which is right in itself, or best for the whole, or even for the individual, but that which is good in his own eyes, and according to his own will; and to which, among a number of equally selfish and self-willed beings, he can lay claim, allowing the same latitude and allowance to others. Political justice is that which assigns the limits of these individual rights in society, or it is the adjustment of force against force, of will against will, to prevent worse consequences. In the savage state there is nothing but an appeal to brute force, or the right of the strongest; Politics lays down a rule to curb and measure out the wills of individuals in equal portions; Morals has a higher standard still, and ought never to appeal to force in any case whatever. Hence I always found something wanting in Mr. Godwin's Enquiry concerning Political Justice (which I read soon after with great avidity, and hoped, from its title and vast reputation, to get entire satisfaction from it), for he makes no distinction between political justice, which implies an appeal to force, and moral justice, which implies only an appeal to reason. It is surely a distinct question, what you can persuade people to do by argument and fair discussion, and what you may lawfully compel them to do, when reason and remonstrance fail. But in Mr. Godwin's system the 'omnipotence of reason' supersedes the use of law and government, merges the imperfection of the means in the grandeur of the end, and leaves but one class of ideas or motives, the highest and the least attainable possible. So promises and oaths are said to be of no more value than common breath; nor would they, if every word we uttered was infallible and oracular, as if delivered from a Tripod. But this is pragmatical, and putting an imaginary for a real state of things. Again, right and duties, according to Mr. Godwin, are reciprocal. I could not comprehend this without an arbitrary definition that took away the meaning. In my sense, a man might have a right, a discriminating power, to do something, which others could not deprive him of, without a manifest infraction of certain rules laid down for the peace and order of society, but which it might be his duty to waive upon good reasons shown; rights are seconded by force, duties are things of choice. This is the import of the words in common speech: why then pass over this distinction in a work confessedly rhetorical as well as logical, that is, which laid an equal stress on sound and sense? Right, therefore, has a personal or selfish reference, as it is founded on the law which determines a man's actions in regard to his own being and well-being; and political justice is that which assigns the limits of these individual rights on their compatibility or incompatibility with each other in society. Right, in a word, is the duty which each man owes to himself; or it is that portion of the general good of which (as being principally interested) he is made the special judge, and which is put under his immediate keeping. [Emphasis added.]
The next question I asked myself was, what is law and the real and necessary ground of civil government? The answer to this is found in the former statement. Law is something to abridge, or, more properly speaking, to ascertain, the bounds of the original right, and to coerce the will of individuals in the community. Whence, then, has the community such a right? It can only arise in self-defence, or from the necessity of maintaining the equal rights of every one, and of opposing force to force in case of any violent and unwarrantable infringement of them. Society consists of a given number of individuals; and the aggregate right of government is only the consequence of these inherent rights, balancing and neutralising one another [Lockian theory]. How those who deny natural rights get at any sort of right, divine or human, I am at a loss to discover; for whatever exists in combination, exists beforehand in an elementary state. The world is composed of atoms, and a machine cannot be made without materials. First, then, it follows that law or government is not the mere creature of a social compact, since each person has a certain right which he is bound to defend against another without asking that other's leave, or else the right would always be at the mercy of whoever chose to invade it. There would be a right to do wrong, but none to resist it. Thus I have a natural right to defend my life against a murderer, without any mutual compact between us; hence society has an aggregate right of the same kind, and to make a law to that effect, forbidding and punishing murder. If there be no such immediate value and attachment to life felt by the individual, and a consequent justifiable determination to defend it, then the formal pretension of society to vindicate a right, which, according to this reasoning, has no existence in itself, must be founded on air, on a word, or a lawyer's ipse dixit. Secondly, society, or government, as such, has no right to trench upon the liberty or rights of the individuals its members, except as those last are, as it were, forfeited by interfering with and destroying one another, like opposite mechanical forces or quantities in arithmetic. Put the basis that each man's will is a sovereign law to itself: this can only hold in society as long as he does not meddle with others; but so long as he does not do this, the first principle retains its force, for there is no other principle to impeach or overrule it. The will of society is not a sufficient plea; since this is, or ought to be, made up of the wills or rights of the individuals composing it, which by the supposition remain entire, and consequently without power to act. The good of society is not a sufficient plea, for individuals are only bound (on compulsion) not to do it harm, or to be barely just: benevolence and virtue are voluntary qualities. For instance, if two persons are obliged to do all that is possible for the good of both, this must either be settled voluntarily between them, and then it is friendship, and not force; or if this is not the case, it is plain that one must be the slave, and lie at the caprice and mercy of the other: it will be one will forcibly regulating two bodies. But if each is left master of his own person and actions, with only the implied proviso of not encroaching on those of the other, then both may continue free and independent, and contented in their several spheres. One individual has no right to interfere with the employment of my muscular powers, or to put violence on my person, to force me to contribute to the most laudable undertaking if I do not approve of it, any more than I have to force him to assist me in the direct contrary: if one has not, ten have not, nor a million, any such arbitrary right over me. What one can be made to do for a million is very trifling: what a million may do by being left free in all that merely concerns themselves, and not subject to the perpetual caprice and insolence of authority, and pretext of the public good, is a very different calculation. By giving up the principle of political independence, it is not the million that will govern the one, but the one that will in time give law to the million. There are some things that cannot be free in natural society, and against which there is a natural law; for instance, no one can be allowed to knock out another's brains or to fetter his limbs with impunity. And government is bound to prevent the same violations of liberty and justice. The question is, whether it would not be possible for a government to exist, and for a system of laws to be framed, that confined itself to the punishment of such offences, and left all the rest (except the suppression of force by force) optional or matter of mutual compact. What are a man's natural rights? Those, the infringement of which cannot on any supposition go unpunished: by leaving all but cases of necessity to choice and reason, much would be perhaps gained, and nothing lost. [Emphasis added.]
COROLLARY 1. It results from the foregoing statement, that there is nothing naturally to restrain or oppose the will of one man, but the will of another meeting it. Thus, in a desert island, it is evident that my will and rights would be absolute and unlimited, and I might say with Robinson Crusoe, 'I am monarch of all I survey.'
COROLLARY 2. It is coming into society that circumscribes my will and rights, by establishing equal and mutual rights, instead of the original uncircumscribed ones. They are still 'founded as the rock,' though not so broad and general as the casing air, for the only thing that limits them is the solidity of another right, no better than my own, and, like stones in a building, or a mosaic pavement, each remains not the less firmly riveted to its place, though it cannot encroach upon the next to it. I do not belong to the state, nor am I a nonentity in it, but I am one part of it, and independent in it, for that very reason that every one in it is independent of me. Equality, instead of being destroyed by society, results from and is improved by it; for in politics, as in physics, the action and reaction are the same: the right of resistance on their part implied the right of self-defence on mine. In a theatre, each person has a right to his own seat, by the supposition that he has no right to intrude into any one else's. They are convertible propositions. Away, then, with the notion that liberty and equality are inconsistent. But here is the artifice: by merging the rights and independence of the individual in the fictitious order of society, those rights become arbitrary, capricious, equivocal, removable at the pleasure of the state or ruling power; there is nothing substantial or durable implied in them: if each has no positive claim, naturally, those of all taken together can mount up to nothing; right and justice are mere blanks to be filled up with arbitrary will, and the people have thenceforward no defence against the government. On the other hand, suppose these rights to be not empty names or artificial arrangements, but original and inherent like solid atoms, then it is not in the power of government to annihilate one of them, whatever may be the confusion arising from their struggle for mastery, or before they can settle into order and harmony. Mr. Burke talks of the reflections and refractions of the rays of light as altering their primary essence and direction. But if there were no original rays of light, there could be neither refraction, nor reflections. Why, then, does he try by cloudy sophistry to blot the sun out of heaven? One body impinges against and impedes another in the fall, but it could not do this, but for the principle of gravity. The author of the Sublime and Beautiful would have a single atom out-weigh the great globe itself; or an empty title, a bloated privilege, or a grievous wrong overturn the entire mass of truth and justice. The question between the author and his opponents appears to be simply this: whether politics, or the general good, is an affair of reason or imagination! and this seems decided by another consideration, viz., that Imagination is the judge of individual things, and Reason of generals. Hence the great importance of the principle of universal suffrage; for if the vote and choice of a single individual goes for nothing, so, by parity of reasoning, may that of all the rest of the community: but if the choice of every man in the community is held sacred, then what must be the weight and value of the whole.
Many persons object that by this means property is not represented, and so, to avoid that, they would have nothing but property represented, at the same time that they pretend that if the elective franchise were thrown open to the poor, they would be wholly at the command of the rich, to the prejudice and exclusion of the middle and independent classes of society. Property always has a natural influence and authority: it is only people without property that have no natural protection, and require every artificial and legal one. Those that have much, shall have more; and those that have little, shall have less. This proverb is no less true in public than in private life. The better orders (as they are called, and who, in virtue of this title, would assume a monopoly in the direction of state affairs) are merely and in plain English those who are better off than others; and as they get the wished-for monopoly into their hands, others will uniformly be worse off, and will sink lower and lower in the scale; so that it is essentially requisite to extend the elective franchise in order to counteract the excess of the great and increasing goodness of the better orders to themselves. I see no reason to suppose that in any case popular feeling (if free course were given to it) would bear down public opinion. Literature is at present pretty nearly on the footing of universal suffrage, yet the public defer sufficiently to the critics; and when no party bias interferes, and the government do not make a point of running a writer down, the verdict is tolerably fair and just. I do not say that the result may not be equally satisfactory, when literature was patronised more immediately by the great; but then lords and ladies had no interest in praising a bad piece and condemning a good one. If they could have laid a tax on the town for not going to it, they would have run a bad play forty nights together, or the whole year round, without scruple. As things stand, the worse the law, the better for the lawmakers: it takes everything from others to give to them. It is common to insist on universal suffrage and the ballot together. But if the first were allowed, the second would be unnecessary. The ballot is only useful as a screen from arbitrary power. There is nothing manly or independent to recommend it.
COROLLARY 3. If I was out at sea in a boat with a jure divino monarch, and he wanted to throw me overboard, I would not let him. No gentleman would ask such a thing, no freeman would submit to it. Has he, then, a right to dispose of the lives and liberties of thirty millions of men? Or have they more right than I have to resist his demands? They have thirty millions of times that right, if they had a particle of the same spirit that I have. It is not the individual, then, whom in this case I fear (to me 'there's no divinity doth hedge a king'), but thirty millions of his subjects that call me to account in his name, and who are of a most approved and indisputable loyalty, and who have both the right and power. The power rests with the multitude, but let them beware how the exercise of it turns against their own rights! It is not the idol but the worshippers that are to be dreaded, and who, by degrading one of their fellows, render themselves liable to be branded with the same indignities.
COROLLARY 4. No one can be born a slave; for my limbs are my own, and the power and the will to use them are anterior to all laws, and independent of the control of every other person. No one acquires a right over another but that other acquires some reciprocal right over him; therefore the relation of master and slave is a contradiction in political logic. Hence, also, it follows that combinations among labourers for the rise of wages are always just and lawful, as much as those among master manufacturers to keep them down. A man's labour is his own, at least as much as another's goods; and he may starve if he pleases, but he may refuse to work except on his own terms. The right of property is reducible to this simple principle, that one man has not a right to the produce of another's labour, but each man has a right to the benefit of his own exertions and the use of his natural and inalienable powers, unless for a supposed equivalent and by mutual consent. Personal liberty and property therefore rest upon the same foundation. I am glad to see that Mr. Macculloch, in his Essay on Wages, admits the right of combination among journeyman and others. I laboured this point hard, and, I think, satisfactorily, a good while ago, in my Reply to Mr. Malthus. 'Throw your bread upon the waters, and after many days you shall find it again.'
There are four things that a man may especially call his own. 1. His person. 2. His actions. 3. His property. 4. His opinions. Let us see how each of these claims unavoidably circumscribes and modifies those of others, on the principle of abstract equity and necessity and independence above laid down.
FIRST, AS TO THE RIGHTS OF PERSONS. My intention is to show that the right of society to make laws to coerce the will of others, is founded on the necessity of repelling the wanton encroachment of that will on their rights; that is, strictly on the right of self-defence or resistance to aggression. Society comes forward and says, 'Let us alone, and we will let you alone, otherwise we must see which is strongest'; its object is not to patronise or advise individuals for their good, and against their will, but to protect itself: meddling with others forcibly on any other plea or for any other purpose is impertinence. But equal rights destroy one another; not can there be a right to impossible or impracticable things. Let A, B, C, D, etc. , be different component parts of any society, each claiming to be the centre and master of a certain sphere of activity and self-determination: as long as each keeps within his own life of demarcation there is no harm done, nor any penalty incurred - it is only the superfluous and overbearing will of particular persons that must be restrained or lopped off by the axe of the law. Let A be the culprit: B, C, D, etc., or the rest of the community, are plaintiffs against A, and wish to prevent his taking any unfair or unwarranted advantage over them. They set up no pretence to dictate or domineer over him, but merely to hinder his dictating to and domineering over them; and in this, having both might and right on their side, they have no difficulty in putting it in execution. Every man's independence and discretionary power over what peculiarly and exclusively concerns himself, is his castle (whether round, square, or, according to Mr. Owen's new map of improvements, in the form of a parallelogram). As long as he keeps within this, he is safe - society has no hold of him: it is when he quits it to attack his neighbours that they resort to reprisals, and make short work of the interloper. It is, however, time to endeavour to point out in what this natural division of right, and separate advantage consists. In the first place, A, B, C, D have the common and natural rights of persons, in so far that none of these has a right to offer violence to, or cause bodily pain or injury to any of the others. Sophists laugh at natural rights: they might as well deny that we have natural persons; for while the last distinction holds true and good by the constitution of things, certain consequences must and will follow from it - 'while this machine is to us Hamlet,' etc. For instance, I should like to know whether Mr. Burke, with his Sublime and Beautiful fancies, would deny that each person has a particular body and senses belonging to him, so that he feels a peculiar and natural interest in whatever affects these more than another can, and whether such a peculiar and paramount interest does not imply a direct and unavoidable right in maintaining this circle of individuality inviolate. To argue otherwise is to assert that indifference, or that which does not feel either the good or the ill, is as capable a judge and zealous a discriminator of right and wrong as that which does. The right, then, is coeval and co-extended with the interest, not a product of convention, but inseparable from the order of the universe; the doctrine itself is natural and solid; it is the contrary fallacy that is made of air and words. Mr. Burke, in such a question, was like a man out at sea in a haze, and could never tell the difference between land and clouds. If another break my arm by violence, this will not certainly give him additional health or strength; if he stun me by a blow or inflict torture on my limbs, it is I who feel the pain, and not he; and it is hard if I, who am the sufferer, and not allowed to be the judge. That another should pretend to deprive me of it, or pretend to judge for me, and set up his will against mine, in what concerns this portion of my existence - where I have all at stake and he nothing - is not merely injustice, but impudence. The circle of personal security and right, then, is not an imaginary and arbitrary line fixed by law and the will of the prince, or the scaly finger of Mr. Hobbes's Leviathan, but is real and inherent in the nature of things, and by itself the foundation of law and justice. 'Hands off is fair play' - according to the old adage. One, therefore, has not a right to lay violent hands on another, or to infringe on the sphere of his personal identity; one must not run foul of another, or he is liable to be repelled and punished for the offence. If you meet an Englishman suddenly in the street, he will run up against you sooner than get out of your way, which last he thinks a compromise of his dignity and a relinquishment of his purpose, though he expects you to get out of his. A Frenchman in the same circumstances will come up close to you, and try to walk over you, as if there was no one in his way; but if you take no notice of him, he will step on one side, and make you a low bow. The one is a fellow of stubborn will, the other a petit maître. An Englishman at play mounts upon a bench, and refuses to get down at the request of another, who threatens to call him to account the next day. 'Yes,' is the answer to the first, 'if your master will let you!' His abuse of liberty, he thinks, is justified by the other's want of it. All an Englishman's ideas are modifications of his will; which shows, in one way, that right is founded on will, since the English are at once the freest and most wilful of all people. If you meet another on the ridge of a precipice, are you to throw each other down? Certainly not. You are to pass as well as you can. 'Give and take,' is the rule of natural right, where the right is not all on one side and cannot be claimed entire. Equal weights and scales produce a balance, as much as where the scales are empty: so it does not follow (as our votaries of absolute power would insinuate) that one man's right is nothing because another's is something. But suppose there is not time to pass, and one or other must perish, in the case just mentioned, then each must do the best for himself that he can, and the instinct of self-preservation prevails over everything else. In the streets of London, the passengers take the right hand of one another and the wall alternately; he who should not conform to this rule would be guilty of a breach of the peace. But if a house were falling, or a mad ox driven furiously by, the rule would be, of course, suspended, because the case would be out of the ordinary. Yet I think I can conceive, and have even known, persons capable of carrying the point of gallantry in political right to such a pitch as to refuse to take a precedence which did not belong to them in the most perilous circumstances, just as a soldier may waive a right to quit his post, and takes his turn in battle. The actual collision or case of personal assault and battery, is, then, clearly prohibited, inasmuch as each person's body is clearly defined: but how if A use other means of annoyance against B, such as a sword or poison, or resort to what causes other painful sensations besides tangible ones, for instance, certain disagreeable sounds and smells? Or, if these are included as a violation of personal rights, then how draw the line between them and the employing certain offensive words and gestures or uttering opinions which I disapprove? This is a puzzler for the dogmatic school; but they solve the whole difficulty by an assumption of utility, which is as much as to tell a person that the way to any place to which he asks a direction is 'to follow his nose.' We want to know by given marks and rules what is best and useful; and they assure us very wisely, that this infallibly and clearly determined by what is best and useful. Let us try something else. It seems no less necessary to erect certain little fortalices, with palisades and outworks about them, for RIGHT to establish and maintain itself in, than as landmarks to guide us across the wide waste of UTILITY. If a person runs a sword through me, or administers poison, or procures it to be administered, the effect, the pain, disease or death is the same, and I have the same right to prevent it, on the principle that I am the sufferer; that the injury is offered to me, and he is no gainer by it, except for mere malice or caprice, and I therefore remain master and judge of my own remedy, as in the former case; the principle and definition of right being to secure to each individual the determination and protection of that portion of sensation in which he has the greatest, if not a sole interest, and, as it were, identity with it. Again, as to what are called nuisances, to wit offensive smells, sounds, etc., it is more difficult to determine, on the ground that one man's meat is another man's poison. I remember a case occurred in the neighbourhood where I was, and at the time I was trying my best at this question, which puzzled me a good deal. A rector of a little town in Shropshire, who was at variance with all his parishioners, had conceived a particular spite to a lawyer who lived next door to him, and as a means of annoying him, used to get together all sorts of rubbish, weeds, and unsavoury materials, and set them on fire, so that the smoke should blow over into his neighbour's garden; whenever the wind set in that direction, he said, as a signal to his gardener, 'It's a fine Wicksteed wind to-day'; and the operation commenced. Was this an action of assault and battery, or not? I think it was, for this reason, that the offence was unequivocal, and that the only motive for the proceeding was the giving this offence. The assailant would not like to be served so himself. Mr. Bentham would say, the malice of the motive was a set-off to the injury. I shall leave that prima philosophia consideration out of the question. A man who knocks out another's brains with a bludgeon may say it pleases him to do so; but will it please him to have the compliment returned? If he still persists, in spite of this punishment, there is no preventing him; but if not, then it is a proof that he thinks the pleasure less than the pain to himself, and consequently to another in the scales of justice. The lex talionis is an excellent test. Suppose a third person (the physician of the place) had said, 'It is a fine Egerton wind to-day,' our rector would have been non-plussed; for he would have found that, as he suffered all the hardship, he had the right to complain of and to resist an action of another, the consequences of which affected principally himself. Now mark: if he had himself had any advantage to derive from the action, which he could not obtain in any other way, then he would feel that his neighbour also had the same plea and right to follow his own course (still this might be a doubtful point); but in the other case it would be sheer malice and wanton interference; that is, not the exercise of a right, but the invasion of another's comfort and independence. Has a person, then, a right to play on the horn or on a flute, on the same staircase? I say, yes; because it is for his own improvement and pleasure, and not to annoy another; and because, accordingly, every one in his own case would wish to reserve this or a similar privilege to himself. I do not think a person has a right to beat a drum under one's window, because this is altogether disagreeable, and if there is an extraordinary motive for it, then it is fit that the person should be put to some little inconvenience in removing his sphere of liberty of action to a reasonable distance. A tallow-chandler's shop or a steam-engine is a nuisance in a town, and ought to be removed into the suburbs; but they are to be tolerated where they are least inconvenient, because they are necessary somewhere, and there is no remedying the inconvenience. The right to protest against and to prohibit them rests with the suffering party; but because this point of the greatest interest is less clear in some cases than in others, it does not follow that there is no right or principle of justice in the case. 3. As to matters of contempt and the expression of opinion, I think these do not fall under the head of force, and are not, on that ground, subjects of coercion and law. For example, if a person inflicts a sensation upon me by material means, whether tangible or otherwise, I cannot help that sensation; I am so far the slave of that other, and have no means of resisting him but by force, which I would define to be material agency. But if another proposes an opinion to me, I am not bound to be of this opinion; my judgment and will is left free, and therefore I have no right to resort to force to recover a liberty which I have not lost. If I do this to prevent that other from pressing that opinion, it is I who invade his liberty, without warrant, because without necessity. It may be urged that material agency, or force, is used in the adoption of sounds or letters of the alphabet, which I cannot help seeing or hearing. But the injury is not here, but in the moral and artificial interference, which I am at liberty to admit or reject, according to the evidence. There is no force but argument in the case, and it is reason, not the will of another, that gives the law. Further, the opinion expressed, generally concerns not one individual, but the general interest; and of that my approbation or disapprobation is not a commensurate or the sole judge. I am judge of my own interests, because it is my affair, and no one's else; but by the same rule, I am not a judge, nor have I a veto on that which appeals to all the world, merely because I have a prejudice or fancy against it. But suppose another expresses by signs or words a contempt for me? Answer. I do not know that he is bound to have a respect for me. Opinion is free; for if I wish him to have that respect, then he must be left free to judge for himself, and consequently to arrive at and to express the contrary opinion, or otherwise the verdict and testimony I aim at could not be obtained; just as players must consent to be hissed if they expect to be applauded. Opinion cannot be forced, for it is not grounded on force, but on evidence and reason, and therefore these last are the proper instruments to control that opinion, and to make it favourable to what we wish, or hostile to what we disapprove. In what relates to action, the will of another is force, or the determining power: in what relates to opinion, the mere will or ipse dixit of another is of no avail but as it gains over other opinions to its side, and therefore neither needs nor admits of force as a counter-acting means to be used against it. But in the case of calumny or indecency: 1. I would say that it is the suppression of truth that gives falsehood its worst edge. What transpires (however maliciously or secretly) in spite of the law, is taken for gospel, and as it is impossible to prevent calumny, so it is impossible to counteract it on the present system, or while every attempt to answer it is attributed to the people's not daring to speak the truth. If any single fact or accident peeps out, the whole character, having this legal screen before it, is supposed to be of a piece; and the world, defrauded of the means of coming to their own conclusion, naturally infer the worst. Hence the saying, that reputation once gone never returns. If, however, we grant the general license or liberty of the press, in a scheme where publicity is the great object, it seems a manifest contre-sens that the author should be the only thing screened or kept a secret: either, therefore, an anonymous libeller would be heard with contempt, or if he signed his name thus -, or thus - -, it would be equivalent to being branded publicly as a calumniator, or marked with the T.F. (travail forcé) or the broad R. (rogue) on his back. These are thought sufficient punishments, and yet they rest on opinion without stripes or labour. As to indecency, in proportion as it is flagrant is the shock and resentment against it; and as vanity is the source of indecency, so the universal discountenance and shame is its most effectual antidote. If it is public, it produces immediate reprisals from public opinion which no brow can stand; and if secret, it had better be left so. No one can then say it is obtruded on him; and if he will go in search of it, it seems odd he should call upon the law to frustrate the object of his pursuit. Further, at the worst, society has its remedy in its own hands whenever its moral sense is outraged, that is, it may send to Coventry, or ex-communicate like the church of old; for though it may have no right to prosecute, it is not bound to protect or patronise, unless by voluntary consent of all parties concerned. Secondly, as to rights of action, or personal liberty. These have no limit but the rights of persons or property aforesaid, or to be hereafter named. They are the channels in which the others run without injury and without impediment, as a river within its banks. Every one has a right to use his natural powers in the way most agreeable to himself, and which he deems most conducive to his own advantage, provided he does not interfere with the corresponding rights and liberties of others. He has no right to coerce them by a decision of his individual will, and as long as he abstains from this he has no right to be coerced by an expression of the aggregate will, that is, by law. The law is the emanation of the aggregate will, and this will receives its warrant to act only from the forcible pressure from without, and its indispensable resistance to it. Let us see how this will operate to the pruning and curtailment of law. The rage of legislation is the first vice of society; it ends by limiting it to as few things as possible. 1. There can, according to the principle here imperfectly sketched, be no laws for the enforcement of morals; because morals have to do with the will and affections, and the law only puts a restraint on these. Every one is politically constituted the judge of what is best for himself; it is only when he encroaches on others that he can be called to account. He has no right to say to others, You shall do as I do: how then should they have a right to say to him, You shall do as we do? Mere numbers do not convey the right, for the law addresses not one, but the whole community. For example, there cannot rightly be a law to set a man in the stocks for getting drunk. It injures his health, you say. That is his concern, and not mine. But it is detrimental to his affairs: if so, he suffers most by it. But it is ruinous to his wife and family: he is their natural and legal guardian. But they are thrown upon the parish: the parish need not take the burden upon itself, unless it chooses or has agreed to do so. If a man is not kind to or fond of his wife I see no law to make him. If he beats her, or threatens her life, she as clearly has a right to call in the aid of a constable or justice of peace. I do not see, in the manner, how there can be law against gambling (against cheating there may), or against usury. A man gives twenty, forty, a hundred per cent. with his eyes open, but would he do it if strong necessity did not impel him? Certainly no man would give double if he could get the same advantage for half. There are circumstances in which a rope to save me from drowning, or a draught of water, would be worth all I have. In like manner, lotteries are fair things; for the loss is inconsiderable, and the advantage may be incalculable. I do not believe the poor put into them, but the reduced rich, the shabby-genteel. Players were formerly prohibited as a nuisance, and fortune-tellers still are liable to the Vagrant Act, which the parson of the parish duly enforces, in his zeal to prevent cheating and imposture, while he himself has his two livings, and carries off a tenth of the produce of the soil. Rape is an offence clearly punishable by law; but I would not say that simple incontinence is so. I will give one more example, which, though quaint, may explain the distinction I aim at. A man may commit suicide if he pleases, without being responsible to any one. He may quit the world as he would quit the country where he was born. But if any person were to fling himself from the gallery into the pit of a playhouse, so as to endanger the lives of others, if he did not succeed in killing himself, he would render himself liable to punishment for the attempt, if it were to be supposed that a person so desperately situated would care about consequences. Duelling is lawful on the same principle, where every precaution is taken to show that the act is voluntary and fair on both sides. I might give other instances, but these will suffice. 2. There should be a perfect toleration in matters of religion. In what relates to the salvation of a man's soul, he is infinitely more concerned than I can be; and to pretend to dictate to him in this particular is an infinite piece of impertinence and presumption. But if a man has no religion at all? That does not hinder me from having any. If he stood at the church door and would not let me enter, I should have a right to push him aside; but if he lets me pass by without interruption, I have no right to turn back and drag him in after me. He might as well force me to have no religion as I force him to have one, or burn me at the stake for believing what he does not. Opinion, 'like the wild goose, flies unclaimed of any man': heaven is like 'the marble air, accessible to all'; and therefore there is no occasion to trip up one another's heels on the road, or to erect a turnpike gate to collect large sums from the passengers. How have I a right to make another pay for the saving of my soul, or to assist me in damning his? There should be no secular interference in sacred things; no laws to suppress or establish any church or sect in religion, no religious persecutions, tests, or disqualifications; the different sects should be left to inveigh and hate each other as much as they please; but without the love of exclusive domination and spiritual power there would be little temptation to bigotry and intolerance.
3. AS TO THE RIGHTS OF PROPERTY. If it of no use a man's being left to enjoy security, or to exercise his freedom of action, unless he has a right to appropriate certain other things necessary to his comfort and subsistence to his own use. In a state of nature, or rather of solitary independence, he has a right to all he can lay his hands on: what then limits this right? Its being inconsistent with the same right in others. This strikes a mathematical or logical balance between two extreme and equal pretensions. As there is not a natural and indissoluble connection between the individual and his property, or those outward subjects of which he may have need (they being detached, unlimited, and transferable), as there is between the individual and his person, either as an organ of sensation or action, it is necessary, in order to prevent endless debate and quarrels, to fix upon some other criterion or common ground of preference. Animals, or savages, have no idea of any other right than that of the strongest, and seize on all they can get by force, without any regard to justice or an equal claim. 1. One mode of settling the point is to divide the spoil. That is allowing an equal advantage to both. Thus boys, when they unexpectedly find anything, are accustomed to cry 'Halves!' But this is liable to other difficulties, and applies only to the case of joint finding. 2. Priority of possession is a far way of deciding the right of property; first, on the mere principle of a lottery, or the old saying, 'First come, first served'; secondly, because the expectation having been excited, and the will more set upon it, this constitutes a powerful reason for not violently forcing it to let go its hold. The greater strength of volition is, we have seen, one foundation of right; for supposing a person to be absolutely indifferent to anything, he could properly set up no claim to it. 3. Labour, or the having produced a thing or fitted it for use by previous exertion, gives this right, chiefly, indeed, for moral and final causes; because if one enjoyed what another had produced, there would be nothing but idleness and rapacity; but also in the sense we are inquiring into, because on a merely selfish ground the labour undergone, or the time lost, is entitled to an equivalent cæteris manentibus. 4. If another, voluntarily, or for a consideration, resigns to me his right in anything, it to all intents and purposes becomes mine. This accounts not only for gifts, the transfer of property by bargains, etc., but for legacies, and the transmission of property in families or otherwise. It is hard to make a law to circumscribe this right of disposing of what we have as we please; yet the boasted law of primogeniture, which is professedly the bulwark and guardian of property, is in direct violation of this principle. 5, and lastly. Where a thing is common, and there is enough for all, and no one contributes to it, as air or water, there can be no property in it. The proximity to a herring-fishery, or the having been the first to establish a particular traffic in such commodities, may perhaps give this right by aggravating our will, as having a nearer or longer power over them; but the rule is the other way. It is on the same principle that poaching is a kind of honest thieving, for that which costs no trouble and is confined to no limits seems to belong to no one exclusively (why else do poachers or country people seize on this kind of property with the least reluctance, but that it is the least like stealing?); and as the game laws and the tenaciousness of the rights to that which has least the character of property, as most a point of honour, produced a revolution in one country, so they are not unlikely to produce it in another. The object and principle of the laws of property, then, is this: 1. To supply individuals and the community with what they need. 2. To secure an equal share to each individual, other circumstances being the same. 3. To keep the peace and promote industry and plenty, by proportioning each man's share to his own exertions, or to the good-will and discretion of others. The intention, then, being that no individual should rob another, or be starved but by his refusing to work (the earth and its produce being the natural estate of the community, subject to these regulations of individual right and public welfare), the question is, whether any individual can have a right to rob or starve the whole community; or if the necessary discretion left in the application of the principle has led to a state of things subversive of the principle itself, and destructive to the welfare and existence of the state, whether the end being defeated, the law does not fall to the ground, or require either a powerful corrective or a total reconstruction. The end is superior to the means, and the use of a thing does not justify its abuse. If a clock is quite out of order and always goes wrong, it is no argument to say it was set right at first and on true mechanical principles, and therefore it must go on as it has done, according to all the rules of art; on the contrary, it is taken to pieces, repaired, and the whole restored to the original state, or, if this is impossible, a new one is made. So society, when out of order, which it is whenever the interests of the many are regularly and outrageously sacrificed to those of the few, must be repaired, and either a reform or a revolution cleanse its corruptions and renew its elasticity. People talk of the poor laws as a grievance. Either they or a national bankruptcy, or a revolution, are necessary. The labouring population have not doubled in the last forty years; there are still no more than are necessary to do the work in husbandry, etc., that is indispensably required; but the wages of a labouring man are no higher than they were forty years ago, and the price of food and necessaries is at least double what it was then, owing to taxes, grants, monopolies, and immense fortunes gathered during the war by the richer or more prosperous classes, who have not ceased to propagate in the geometrical ratio, though the poor have not done it, and the maintaining of whose younger and increasing branches in becoming splendour and affluence presses with double weight on the poor and labouring classes. The greater part of a community ought not to be paupers or starving; and when a government by obstinacy and madness has reduced them to that state, it must either take wise and effectual measures to relieve them from it, or pay the forfeit of its own wickedness and folly.
It seems, then, that a system of just and useful laws may be constructed nearly, if not wholly, on the principle of the right of self-defence, or the security for person, liberty, and property. There are exceptions, such, for instance, as in the case of children, idiots, and insane persons. These common-sense dictates for a general principle can only hold good where the general conditions are complied with. There are also mixed cases, partaking of civil and moral justice. Is a man bound to support his children? Not in strict political right; but he may be compelled to forego all the benefits of civil society, if he does not fulfil an engagement which, according to the feelings and principles of that society, he has undertaken. So in respect to marriage. It is a voluntary contract, and the violation of it is punishable on the same plea of sympathy and custom. Government is not necessarily founded on common consent, but on the right which society has to defend itself against all aggression. But am I bound to pay or support the government for defending the society against any violence or injustice? No: but then they may withdraw the protection of the law from me if I refuse, and it is on this ground that the contributions of each individual to the maintenance of the state are demanded. Laws are, or ought to be, founded on the supposed infraction of individual rights. If these rights, and the best means of maintaining them, are always clear, and there could be no injustice or abuse of power on the part of the government, every government might be its own lawgiver: but as neither of these is the case, it is necessary to recur to the general voice for settling the boundaries of right and wrong, and even more for preventing the government, under pretence of the general peace and safety, from subjecting the whole liberties, rights, and resources of the community to its own advantage and sole will. [Emphasis added.]
1 Written in 1828 and found in Winterslow; see a listing of Hazlitt's work.
2 This would be Joseph Priestly (1733-1804), a believer in church and the king. He immigrated to Pennsylvania in 1794. He was "a pioneer in the chemistry of gases, and one of the discoverers of oxygen." (Chambers.)
3 Ipse dixit, he himself said it; a dogmatic saying or assertion.