Chapter XI: Part 11

193. In truth, however, the state in its capacity as the sustainer of rights (and it is in this capacity that it punishes) has nothing to do with the amount of moral depravity in the criminal, and the primary reference in punishment, as inflicted by the state, is not to the effect of the punishment on the person punished but to its effect on others. The considerations determining its amount should be prospective rather than retrospective. In the crime a right has been violated. No punishment can undo what has been done, or make good the wrong to the person who has suffered. What it can do is to make less likely the doing of a similar wrong in other cases. Its object, therefore, is not to cause pain to the criminal for the sake of causing it, nor chiefly for the sake of preventing him, individually, from committing the crime again, but to associate terror with the contemplation of the crime in the mind of others who might be tempted to commit it. And this object, unlike that of making the pain of the punishment commensurate with the guilt of the criminal, is in the main attainable. The effect of the spectacle of punishment on the onlooker is independent of any minute inquiry into the degree to which it affects the particular criminal. The attachment of equal penalties to offences that are alike in respect of the importance of the rights which they violate, and in respect of the ordinary temptations to them, will, on the whole, lead to the association of an equal amount of terror with the prospect of committing like offences in the public mind. When the circumstances, indeed, of two criminals guilty of offences alike in both the above respects are very greatly and obviously different, so different as to make the operation of the same penalty upon them very conspicuously different, then the penalty may be varied without interfering with its terrifying effect on the public mind. We will suppose e.g. that a fraud on the part of a respectable banker is equivalent, both in respect of the rights which it violates and of the terror needed to prevent the recurrence of like offences, to a burglary. It will not follow because the burglary is punished by imprisonment with hard labour that hard labour should be inflicted on the fraudulent banker likewise. The infliction of hard labour is in everyone's apprehension so different to the banker from what it is to the burglar, that its infliction is not needed in order to equalise the terror which the popular imagination associates with the punishment in the two cases.

194. On the same principle may be justified the consideration of extenuating circumstances in the infliction of punishment. In fact, whether under that name or another, they are taken account of in the administration of criminal law among all civilised nations. 'Extenuating circumstances' is not a phrase in use among our lawyers, but in fact the consideration of them does constantly, with the approval of the judge, convert what would otherwise have been conviction for murder into conviction for manslaughter, and when there has been conviction for murder, leads to the commutation of the sentence. This fact is often taken to show that the degree of moral depravity on the part of the criminal, the question of his character and motive, is and must be considered in determining the punishment due to him. In truth, however, 'extenuating circumstances' may very well make a difference in the kind of terror which needs to be associated with a crime in order to the future protection of rights, and under certain conditions the consideration of them may be sufficiently justified on this ground. Suppose a theft by a starving man, or a hare shot by an angry farmer whose corn it is devouring. These are crimes, but crimes under such extenuating circumstances that there is no need to associate very serious terror with them in order to the protection of the essential rights of property. In the latter case the right which the farmer violates is one which perhaps might be disallowed altogether without interference with any right which society is interested in maintaining. In the former case the right violated is a primary and essential one; one which, where there are many starving people, is in fact pretty sure to be protected by the most stringent penalties. And it might be argued that on the principle stated this is as it should be; that, so far from the hunger of the thief being a reason for lightening his punishment, it is a reason for increasing it, in order that the special temptation to steal when far gone in hunger may, if possible, be neutralised by a special terror associated with the commission of the crime under those conditions. But this would be a one-sided application of the principle. It is not the business of the state to protect one order of rights specially, but all rights equally. It ought not therefore to protect a certain order of rights by associating special terror with the violation of them, when the special temptation to their violation itself implies a violation of right in the persons of those who are so tempted, as is the case when a general danger to property arises from the fact that many people are on the edge of starvation. The attempt to do so is at once ineffectual and diverts attention from the true way of protecting the endangered right, which is to prevent people from falling into a state of starvation. In any tolerably organised society the condition of a man, ordinarily honest and industrious, who is driven to theft by hunger, will be so abnormal that very little terror needs to be associated with the crime as so committed in order to maintain the sanctity of property in the general imagination. Suppose again a man to be killed in a quarrel arising out of his having tampered with the fidelity of his neighbour's wife. In such a case 'extenuating circumstances' may fairly be pleaded against the infliction of the extremest penalty, because the extremest terror does not need to be associated with homicide, as committed under such conditions, in order to the general protection of human life, and because the attempt so to associate it would tend, so far as successful, to weaken the general sense of the wrong--the breach of family right--involved in the act which, in the case supposed, provokes the homicide.

195. 'After all,' it may be said, 'this is a far-fetched way of explaining the admission of extenuating circumstances as modifying the punishment of crime. Why so strenuously avoid the simpler explanation, that extenuating circumstances are taken into account because they are held to modify the moral guilt of the crime? Is not their recognition a practical proof that the punishment of a crime by the state represents the moral disapproval of the community? Does it not show that, however imperfectly the amount of punishment inflicted on a crime may in fact correspond to its moral wickedness, it is generally felt that it ought to do so?'

196. The answer is that there are two reasons for holding that the state neither can nor should attempt to adjust the amount of punishment which it inflicts on a crime to the degree of moral depravity which the crime implies. (1) That the degree of moral depravity implied in any crime is unascertainable. It depends on the motive of the crime, and on this as part of the general character of the agent; on the relation in which the habitual set of his character stands to the character habitually set on the pursuit of goodness. No one can ascertain this in regard to himself. He may know that he is always far from being what he ought to be; that one particular action of his represents on the whole, with much admixture of inferior motives; the better tendency; another, with some admixture of better motives, the worse. But any question in regard to the degree of moral goodness or badness in any action of his own or of his most intimate friend is quite unanswerable. Much less can a judge or jury answer such a question in regard to an unknown criminal. We may be sure indeed that any ordinary crime--nay, perhaps even that of the 'disinterested rebel'--implies the operation of some motive which is morally bad, for though it is not necessarily the worst men who come into conflict with established rights, it probably never can be the best; but the degree of badness implied in such a conflict in any particular case is quite beyond our ken, and it is this degree that must be ascertained if the amount of punishment which the state inflicts is to be proportionate to the moral badness implied in the crime. (2) The notion that the state should, if it could, adjust the amount of punishment which it inflicts on a crime to the moral wickedness of the crime, rests on a false view of the relation of the state to morality. It implies that it is the business of the state to punish wickedness, as such. But it has no such business. It cannot undertake to punish wickedness, as such, without vitiating the disinterestedness of the effort to escape wickedness, and thus checking the growth of a true goodness of the heart in the attempt to promote a goodness which is merely on the surface. This, however, is not to be understood as meaning that the punishment of crime serves no moral purpose. It does serve such a purpose, and has its value in doing so, but only in the sense that the protection of rights, and the association of terror with their violation, is the condition antecedent of any general advance in moral well-being.

197. The punishment of crime, then, neither is, nor can, nor should be adjusted to the degree of moral depravity, properly so called, which is implied in the crime. But it does not therefore follow that it does not represent the disapproval which the community feels for the crime. On the whole, making allowance for the fact that law and judicial custom vary more slowly than popular feeling, it does represent such disapproval. And the disapproval may fitly be called moral, so far as that merely means that it is a disapproval relating to voluntary action. But it is a disapproval founded on a sense of what is necessary for the protection of rights, not on a judgment of good and evil of that kind which we call conscience when it is applied to our own actions, and which is founded on an ideal of moral goodness with which we compare our inward conduct ('inward,' as representing motives and character). It is founded essentially on the outward aspect of a man's conduct, on the view of it as related to the security and freedom in action and acquisition of other members of society. It is true that this distinction between the outward and inward aspects of conduct is not present to the popular mind. It has not been recognised by those who have been the agents in establishing the existing law of crimes in civilised nations. As the state came to control the individual or family in revenging hurts, and to substitute its penalties for private vengeance, rules of punishment came to be enacted expressive of general disapproval, without any clear consciousness of what was the ground of the disapproval. But in fact it was by what have been just described as the outward consequences of conduct that a general disapproval of it was ordinarily excited. Its morality in the stricter or inward sense was not matter of general social consideration. Thus in the main it has been on the ground of its interference with the general security and freedom in action and acquisition, and in proportion to the apprehension excited by it in this respect, that conduct has been punished by the state. Thus the actual practice of criminal law has on the whole corresponded to its true principle. So far as this principle has been departed from, it has not been because the moral badness of conduct, in the true or inward sense, has been taken account of in its treatment as a crime, for this has not been generally contemplated at all, but because 'religious' considerations have interfered. Conduct which did not call for punishment by the state as interfering with any true rights (rights that should be rights) has been punished as 'irreligious.' This, however, did not mean that it was punished on the ground of moral badness, properly so called. It meant that its consequences were feared either as likely to weaken the belief in some divine authority on which the established system of rights was supposed to rest, or as likely to bring evil on the community through provoking the wrath of some unseen power.

198. This account of the considerations which have regulated the punishment of crimes explains the severity with which 'criminal negligence' is in some cases punished, and that severity is justified by the account given of the true principle of criminal law, the principle, viz., that crime should be punished according to the importance of the right which it violates, and to the degree of terror which in a well-organised society needs to be associated with the crime in order to the protection of the right. It cannot be held that the carelessness of an engine-driver who overlooks a signal and causes a fatal accident, implies more moral depravity than is implied in such negligence as all of us are constantly guilty of. Considered with reference to the state of mind of the agent, it is on a level with multitudes of actions and omissions which are not punished at all. Yet the engine-driver would be found guilty of manslaughter and sentenced to penal servitude. The justification is not to be found in distinctions between different kinds of negligence on the part of different agents, but in the effect of the negligence in different cases upon the rights of others. In the case supposed, the most important of all rights, the right to life, on the part of railway passengers depends for its maintenance on the vigilance of the drivers. Any preventible failure in such vigilance requires to have sufficient terror associated with it in the mind of other engine-drivers to prevent the recurrence of a like failure in vigilance. Such punishment is just, however generally virtuous the victim of it is, because it is necessary to the protection of rights of which the protection is necessary to social well-being; and the victim of it, in proportion to his sense of justice, which means his habit of practically recognising true rights, will recognise it as just.

199. On this principle crimes committed in drunkenness must be dealt with. Not only is all depravity of motive specially inapplicable to them, since the motives actuating a drunken man often seem to have little connection with his habitual character; it is not always the case that a crime committed in drunkenness is even intentional. When a man in a drunken rage kills another, he no doubt intends to kill him, or at any rate to do him 'grievous bodily harm,' and perhaps the association of great penal terror with such an offence may tend to restrain men from committing it even when drunk; but when a drunken mother lies on her child and smothers it, the hurt is not intentional but accidental. The drunkenness, however, is not accidental, but preventible by the influence of adequate motives. It is therefore proper to treat such a violation of right, though committed unknowingly, as a crime, and to associate terror with it in the popular imagination, in order to the protection of rights by making people more careful about getting drunk, about allowing or promoting drunkenness, and about looking after drunken people. It is unreasonable, however, to do this and at the same time to associate so little terror, as in practice we do, with the promotion of dangerous drunkenness. The case of a crime committed by a drunkard is plainly distinguishable from that of a crime committed by a lunatic, for the association of penal terror with the latter would tend neither to prevent a lunatic from committing a crime nor people from becoming lunatics.

200. The principle above stated, as that according to which punishment by the state should be inflicted and regulated, also justifies a distinction between crimes and civil injuries, i.e. between breaches of right for which the state inflicts punishment without redress to the person injured, and those for which it procures or seeks to procure redress to the person injured without punishment of the person causing the injury. We are not here concerned with the history of this distinction (for which see Maine, _Ancient Law_, chap. x, and W.E. Hearn, _The Aryan Household_, chap. xix), nor with the question whether many breaches of right now among us treated as civil injuries ought not to be treated as crimes, but with the justification that exists for treating certain kinds of breach of right as cases in which the state should interfere to procure redress for the person injured, but not in the way of inflicting punishment on the injurer until he wilfully resists the order to make redress. The principle of the distinction as ordinarily laid down, viz. that civil injuries 'are violations of rights when considered in reference to the injury sustained by the individual,' while crimes are 'violations of rights when considered in reference to their evil tendency as regards the community at large' (Stephen, Book V, chap, i), is misleading; for if the well-being of the community did not suffer in the hurt done to the individual, that hurt would not be a violation of a right in the true sense at all, nor would the community have any ground for insisting that the hurt shall be redressed, and for determining the mode in which it shall be redressed. A violation of right cannot in truth be considered merely in relation to injury sustained by an individual, for, thus considered, it would not be a violation of right. It may be said that the state is only concerned in procuring redress for civil injuries, because, if it left an individual to procure redress in his own way, there would be no public peace. But there are other and easier ways of preventing fighting than by procuring redress of wrong. We prevent our dogs from fighting, not by redressing wrongs which they sustain from each other (of wrongs as of rights they are in the proper sense incapable), but by beating them or tying them up. The community would not keep the peace by procuring redress for hurt or damage sustained by individuals, unless it conceived itself as having interest in the security of individuals from hurt and damage, unless it considered the hurt done to individuals as done to itself. The true justification for treating some breaches of right as cases merely for redress, others as cases for punishment, is that, in order to the general protection of rights, with some it is necessary to associate a certain terror, with others it is not.

201. What then is the general ground of distinction between those with which terror does, and those with which it does not, need to be associated? Clearly it is purposeless to associate terror with breaches of right in the case where the breaker does not know that he is violating a right, and is not responsible for not knowing it. No association of terror with such a breach of right can prevent men from similar breaches under like conditions. In any case, therefore, in which it is, to begin with, open to dispute whether a breach of right has been committed at all, e.g. when it is a question whether a contract has been really broken, owing to some doubt as to the interpretation of the contract or its application to a particular set of circumstances, or whether a commodity of which someone is in possession properly belongs to another,--in such a case, though the judge finally decides that there has been a breach of right, there is no ground for treating it as a crime or punishing it. If, in the course of judicial inquiry, it turns out that there has been fraud by one or other of the parties to the litigation, a criminal prosecution, having punishment, not redress, for its object, should properly supervene upon the civil suit, unless the consequences of the civil suit are incidentally such as to amount to a sufficient punishment of the fraudulent party. Again, it is purposeless to associate terror with a breach of obligation which the person committing it knows to be a breach, but of an obligation which he has no means of fulfilling, e.g. non-payment of an acknowledged debt by a man who, through no fault of his own, is without means of paying it. It is only in cases of one or other of the above kinds,--cases in which the breach of right, supposing it to have been committed, has presumably arisen either from inability to prevent it or from ignorance of the existence of the right,--that it can be held as an absolute rule to be no business of the state to interfere penally but only in the way of restoring, so far as possible, the broken right.

202. But there are many cases of breach of right which can neither be definitely reduced to one of the above kinds, nor distinguished from them by any broad demarcation; cases in which the breaker of a right has been ignorant of it, because he has not cared to know, or in which his inability to fulfil it is the result of negligence or extravagance. Whether these should be treated penally or no, will depend partly on the seriousness of the wrong done through avoidable ignorance or negligence, partly on the sufficiency of the deterrent effect incidentally involved in the civil remedy. In the case e.g. of inability to pay a debt through extravagance or recklessness, it may be unnecessary and inadvisable to treat the breach of right penally, in consideration that it is indirectly punished by poverty and the loss of reputation incidental to bankruptcy, and the creditors should not look to the state to protect them from the consequences of lending on bad security. The negligence of a trustee, again, may be indirectly punished by his being obliged to make good the property lost through his neglect to the utmost of his means. This may serve as a sufficiently deterrent example without the negligence being proceeded against criminally. Again, damage done to property by negligence is in England dealt with civilly, not criminally; and it may be held that in this case the liability to civil action is a sufficient deterrent. On the other hand, negligence which, as negligence, is not really distinguishable from the above, is rightly treated criminally when its consequences are more serious; e.g. that of the railway-servant whose negligence results in a fatal accident, that of the bank-director who allows a misleading statement of accounts to be published, fraudulently perhaps in the eye of the law, but in fact negligently. As a matter of principle, no doubt, if intentional violation of the right of property is treated as penal equally with the violation of the right of life, the negligent violation should be treated as penal in the one case as much as in the other. But as the consequences of an action for damages may be virtually though not ostensibly penal to the person proceeded against, it may be convenient to leave those negligences which do not, like the negligence of a railway-servant, affect the most important rights, or do not affect rights on a very large scale as does that of a bank-director, to be dealt with by the civil process.

203. The actual distinction between crimes and civil injuries in English law is no doubt largely accidental. As the historians of law point out, the civil process, having compensation, not punishment, for its object, is the form which the interference of the community for the maintenance of rights originally takes. The community, restraining private vengeance, helps the injured person to redress, and regulates the way in which redress shall be obtained. This procedure no doubt implies the conviction that the community is concerned in the injury done to an individual, but it is only by degrees that this conviction becomes explicit, and that the community comes to treat all preventible breaches of right as offences against itself or its sovereign representative, i.e. as crimes or penal; in the language of English law, as 'breaches of the king's peace.' Those offences are first so treated which happen to excite most public alarm, most fear for general safety (hence, among others, anything thought sacrilegious). In a country like England, where no code has been drawn up on general principles, the class of injuries that are treated penally is gradually enlarged as public alarm happens to be excited in particular directions, but it is largely a matter of accident how the classification of crimes on one side and civil injuries on the other happens to stand at any particular time. [1]

[1] See Markby, _Elements of Law_, chap. xi, especially note 1, p. 243; and Austin, Lecture XXVII. Between crimes and civil injuries the distinction, as it actually exists, is merely one of procedure (as stated by Austin, p. 518). The violation of right in one case is proceeded against by the method of indictment, in the other by an 'action.' The distinction that in one case punishment is the object of the process, in the other redress, is introduced in order to explain the difference of procedure; and to justify this distinction resort is had to the further distinction, that civil injury is considered to affect the individual merely, crime to affect the state. But in fact the action for civil injury may incidentally have a penal result (Austin, p 521), and if it had not, many violations of right now treated as civil injuries would have to be treated as crimes. As an explanation therefore of the distinction between crimes and injuries as it stands, it is not correct to say that for the former punishment is sought, for the latter merely redress. Nor for reasons already given is it true of any civil injury to say that it affects, or should be considered as affecting, injured individuals _merely_. The only distinction of principle is that between violations of right which call for punishment and those which do not; and those only do not call for punishment in some form or other which arise either from uncertainty as to the right violated, or from inability to prevent the violation.

204. According to the view here taken, then, there is no direct reference in punishment by the state, either retrospective or prospective, to moral good or evil. The state in its judicial action does not look to the moral guilt of the criminal whom it punishes, or to the promotion of moral good by means of his punishment in him or others. It looks not to virtue and vice but to rights and wrongs. It looks back to the wrong done in the crime which it punishes; not, however, in order to avenge it, but in order to the consideration of the sort of terror which needs to be associated with such wrong-doing in order to the future maintenance of rights. If the character of the criminal comes into account at all, it can only be properly as an incident of this consideration. Thus punishment of crime is preventive in its object; not, however, preventive of any or every evil and by any and every means, but (according to its idea or as it should be) _justly_ preventive of _injustice_; preventive of interference with those powers of action and acquisition which it is for the general well-being that individuals should possess, and according to laws which allow those powers equally to all men. But in order effectually to attain its preventive object and to attain it justly, it should be reformatory. When the reformatory office of punishment is insisted on, the reference may be, and from the judicial point of view must be, not to the moral good of the criminal as an ultimate end, but to his recovery from criminal habits as a means to that which is the proper and direct object of state-punishment, viz. the general protection of rights. The reformatory function of punishment is from this point of view an incident of its preventive function, as regulated by the consideration of what is just to the criminal as well as to others. For the fulfilment of this latter function, the great thing, as we have seen, is by the punishment of an actual criminal to deter other possible criminals; but for the same purpose, unless the actual criminal is to be put out of the way or locked up for life, it must be desirable to reform him so that he may not be dangerous in future. Now when it is asked why he should not be put out of the way, it must not be forgotten that among the rights which the state has to maintain are included rights of the criminal himself. These indeed are for the time suspended by his action in violation of rights, but founded as they are on the capacity for contributing to social good, they could only be held to be finally forfeited on the ground that this capacity was absolutely extinct.

205. This consideration limits the kind of punishment which the state may justly inflict. It ought not in punishing to sacrifice unnecessarily to the maintenance of rights in general what might be called the reversionary rights of the criminal, rights which, if properly treated, he might ultimately become capable of exercising for the general good. Punishment therefore either by death or by perpetual imprisonment is justifiable only on one of two grounds; either that association of the extremest terror with certain actions is under certain conditions necessary to preserve the possibility of a social life based on the observance of rights, or that the crime punished affords a presumption of a permanent incapacity for rights on the part of the criminal. The first justification may be pleaded for the executions of men concerned in treasonable outbreaks, or guilty of certain breaches of discipline in war (on the supposition that the war is necessary for the safety of the state and that such punishments are a necessary incident of war). Whether the capital punishment is really just in such cases must depend, not only on its necessity as an incident in the defence of a certain state, but on the question whether that state itself is fulfilling its function as a sustainer of true rights. For the penalty of death for murder both justifications may be urged. It cannot be defended on any other ground, but it may be doubted whether the presumption of permanent incapacity for rights is one which in our ignorance we can ever be entitled to make. As to the other plea, the question is whether, with a proper police system and sufficient certainty of detection and conviction, the association of this extremest terror with the murderer is necessary to the security of life. Where the death-penalty, however, is unjustifiable, so must be that of really permanent imprisonment; one as much as the other is an absolute deprivation of free social life, and of the possibilities of moral development which that life affords. The only justification for a sentence of permanent imprisonment in a case where there would be none for capital punishment would be that, though inflicted as permanent, the imprisonment might be brought to an end in the event of any sufficient proof appearing of the criminal's amendment. But such proof could only be afforded if the imprisonment were so modified as to allow the prisoner a certain amount of liberty.

206. If punishment then is to be just, in the sense that in its infliction due account is taken of all rights, including the suspended rights of the criminal himself, it must be, so far as public safety allows, reformatory. It must tend to qualify the criminal for the resumption of rights. As reformatory, however, punishment has for its direct object the qualification for the exercise of rights, and is only concerned with the moralisation of the criminal indirectly so far as it may result from the exercise of rights. But even where it cannot be reformatory in this sense, and over and above its reformatory function in cases where it has one, it has a moral end. Just because punishment by the state has for its direct object the maintenance of rights, it has, like every other function of the state, indirectly a moral object, because true rights, according to our definition, are powers which it is for the general well-being that the individual (or association) should possess, and that well-being is essentially a moral well-being. Ultimately, therefore, the just punishment of crime is for the moral good of the community. It is also for the moral good of the criminal himself, unless--and this is a supposition which we ought not to make--he is beyond the reach of moral influences. Though not inflicted for that purpose, and though it would not the less have to be inflicted if no moral effect on the criminal could be discerned, it is morally the best thing that can happen to him. It is so, even if a true social necessity requires that he be punished with death. The fact that society is obliged so to deal with him affords the best chance of bringing home to him the anti-social nature of his act. It is true that the last utterances of murderers generally convey the impression that they consider themselves interesting persons, quite sure of going to heaven; but these are probably conventional. At any rate if the solemn infliction of punishment on behalf of human society, and without any sign of vindictiveness, will not breed the shame which is the moral new birth, presumably nothing else within human reach will.

M. _THE RIGHT OF THE STATE TO PROMOTE MORALITY._

207. The right of the individual man as such to free life is constantly gaining on its negative side more general recognition. It is the basis of the growing scrupulosity in regard to punishments which are not reformatory, which put rights finally out of the reach of a criminal instead of qualifying him for their renewed exercise. But the only rational foundation for the ascription of this right is the ascription of capacity for free contribution to social good. We treat this capacity in the man whose crime has given proof of its having been overcome by anti-social tendencies, as yet giving him a title to a further chance of its development; on the other hand, we act as if it conferred no title on its possessors, before a crime has been committed, to be placed under conditions in which its realisation would be possible. Is this reasonable? Yet are not all modern states so acting? Are they not allowing their ostensible members to grow up under conditions which render the development of social capacity practically impossible? Was it not more reasonable, as in the ancient states, to deny the right to life in the human subject as such, than to admit it under conditions which prevent the realisation of the capacity that forms the ground of its admission? This brings us to the fourth of the questions that arose [1] out of the assertion of the individual's right to free life. What is the nature and extent of the individual's claim to be enabled positively to realise that capacity for freely contributing to social good which is the foundation of his right to free life?

[1] [Above, sec. 156. RLN]

208. In dealing with this question, it is important to bear in mind that the capacity we are considering is essentially a free or (what is the same) a moral capacity. It is a capacity, not for action determined by relation to a certain end, but for action determined by a conception of the end to which it is relative. Only thus is it a foundation of rights. The action of an animal or plant may be made contributory to social good, but it is not therefore a foundation of rights on the part of an animal or plant, because they are not affected by the conception of the good to which they contribute. A right is a power of acting for his own ends,--for what he conceives to be his good,--secured to an individual by the community, on the supposition that its exercise contributes to the good of the community. But the exercise of such a power cannot be so contributory, unless the individual, in acting for his own ends, is at least affected by the conception of a good as common to himself with others. The condition of making the animal contributory to human good is that we do not leave him free to determine the exercise of his powers; that we determine them for him; that we use him merely as an instrument; and this means that we do not, because we cannot, endow him with rights. We cannot endow him with rights because there is no conception of a good common to him with us which we can treat as a motive to him to do to us as he would have us do to him. It is not indeed necessary to a capacity for rights, as it is to true moral goodness, that interest in a good conceived as common to himself with others should be a man's dominant motive. It is enough if that which he presents to himself from time to time as his good, and which accordingly determines his action, is so far affected by consideration of the position in which he stands to others,--of the way in which this or that possible action of his would affect them, and of what he would have to expect from them in return,--as to result habitually, without force or fear of force, in action not incompatible with conditions necessary to the pursuit of a common good on the part of others. In other words, it is the presumption that a man in his general course of conduct will of his own motion have respect to the common good, which entitles him to rights at the hands of the community. The question of the moral value of the motive which may induce this respect--whether an unselfish interest in common good or the wish for personal pleasure and fear of personal pain--does not come into the account at all. An agent, indeed, who could only be induced by fear of death or bodily harm to behave conformably to the requirements of the community, would not be a subject of rights, because this influence could never be brought to bear on him so constantly, if he were free to regulate his own life, as to secure the public safety. But a man's desire for pleasure to himself and aversion from pain to himself, though dissociated from any desire for a higher object, for any object that is desired because good for others, may constitute a capacity for rights, if his imagination of pleasure and pain is so far affected by sympathy with the feeling of others about him as to make him, independently of force or fear of punishment, observant of established rights. In such a case the fear of punishment may be needed to neutralise anti-social impulses under circumstances of special temptation, but by itself it could never be a sufficiently uniform motive to qualify a man, in the absence of more spontaneously social feelings, for the life of a free citizen. The qualification for such a life is a spontaneous habit of acting with reference to a common good, whether that habit be founded on an imagination of pleasures and pains or on a conception of what ought to be. In either case the habit implies at least an understanding that there is such a thing as a common good, and a regulation of egoistic hopes and fears, if not an inducing of more 'disinterested' motives, in consequence of that understanding.

209. The capacity for rights, then, being a capacity for spontaneous action regulated by a conception of a common good, either so regulated through an interest which flows directly from that conception, or through hopes and fears which are affected by it through more complex channels of habit and association, is a capacity which cannot be generated--which on the contrary is neutralised--by any influences that interfere with the spontaneous action of social interests. Now any direct enforcement of the outward conduct, which ought to flow from social interests, by means of threatened penalties--and a law requiring such conduct necessarily implies penalties for disobedience to it--does interfere with the spontaneous action of those interests, and consequently checks the growth of the capacity which is the condition of the beneficial exercise of rights. For this reason the effectual action of the state, i.e. the community as acting through law, for the promotion of habits of true citizenship, seems necessarily to be confined to the removal of obstacles. Under this head, however, there may and should be included much that most states have hitherto neglected, and much that at first sight may have the appearance of an enforcement of moral duties, e.g. the requirement that parents have their children taught the elementary arts. To educate one's children is no doubt a moral duty, and it is not one of those duties, like that of paying debts, of which the neglect directly interferes with the rights of someone else. It might seem, therefore, to be a duty with which positive law should have nothing to do, any more than with the duty of striving after a noble life. On the other hand, the neglect of it does tend to prevent the growth of the capacity for beneficially exercising rights on the part of those whose education is neglected, and it is on this account, not as a purely moral duty on the part of a parent, but as the prevention of a hindrance to the capacity for rights on the part of children, that education should be enforced by the state. It may be objected, indeed, that in enforcing it we are departing in regard to the parents from the principle above laid down; that we are interfering with the spontaneous action of social interests, though we are doing so with a view to promoting this spontaneous action in another generation. But the answer to this objection is, that a law of compulsory education, if the preferences, ecclesiastical or otherwise, of those parents who show any practical sense of their responsibility are duly respected, is from the beginning only felt as compulsion by those in whom, so far as this social function is concerned, there is no spontaneity to be interfered with; and that in the second generation, though the law with its penal sanctions still continues, it is not felt as a law, as an enforcement of action by penalties, at all.

210. On the same principle the freedom of contract ought probably to be more restricted in certain directions than is at present the case. The freedom to do as they like on the part of one set of men may involve the ultimate disqualification of many others, or of a succeeding generation, for the exercise of rights. This applies most obviously to such kinds of contract or traffic as affect the health and housing of the people, the growth of population relatively to the means of subsistence, and the accumulation or distribution of landed property. In the hurry of removing these restraints on free dealing between man and man, which have arisen partly perhaps from some confused idea of maintaining morality, but much more from the power of class-interests, we have been apt to take too narrow a view of the range of persons--not one generation merely, but succeeding generations--whose freedom ought to be taken into account, and of the conditions necessary to their freedom ('freedom' here meaning their qualification for the exercise of rights). Hence the massing of population without regard to conditions of health; unrestrained traffic in deleterious commodities; unlimited upgrowth of the class of hired labourers in particular industries which circumstances have suddenly stimulated, without any provision against the danger of an impoverished proletariate in following generations. Meanwhile, under pretence of allowing freedom of bequest and settlement, a system has grown up which prevents the landlords of each generation from being free either in the government of their families or in the disposal of their land, and aggravates the tendency to crowd into towns, as well as the difficulties of providing healthy house-room, by keeping land in a few hands. It would be out of place here to consider in detail the remedies for these evils, or to discuss the question how far it is well to trust to the initiative of the state or of individuals in dealing with them. It is enough to point out the directions in which the state may remove obstacles to the realisation of the capacity for beneficial exercise of rights, without defeating its own object by vitiating the spontaneous character of that capacity.

N. _THE RIGHT OF THE STATE IN REGARD TO PROPERTY._

211. We have now considered the ground of the right to free life, and what is the justification, if any, for the apparent disregard of that right, _(a)_ in war, __(b)__ in the infliction of punishment. We have also dealt with the question of the general office of the state in regard to the development of that capacity in individuals which is the foundation of the right, pointing out on the one hand the necessary limitation of its office in this respect, on the other hand the directions in which it may remove obstacles to that development. We have next to consider the rationale of the rights of property.

In discussions on the 'origin of property' two questions are apt to be mixed up which, though connected, ought to be kept distinct. One is the question how men have come to appropriate; the other the question how the idea of right has come to be associated with their appropriations. As the term 'property' not only implies a permanent possession of something, or a possession which can only be given up with the good will of the possessor, but also a possession recognised as a right, an inquiry into the origin of property must involve both these questions, but it is not the less important that the distinction between them should be observed. Each of them again has both its analytical and its historical side. In regard to the first question it is important to learn all that can be learnt as to the kind of things that were first, and afterwards at successive periods, appropriated; as to the mode in which, and the sort of persons or societies by whom, they were appropriated. This is an historical inquiry. But it cannot take the place of a metaphysical or psychological analysis of the conditions on the part of the appropriating subject implied in the fact that he does such a thing as appropriate. So, too, in regard to the second question, it is important to investigate historically the forms in which the right of men in their appropriations has been recognised; the parties, whether individuals or societies, to whom the right has been allowed; and the sort of objects, capable of appropriation, to which it has been considered to extend. But neither can these inquiries help us to understand, in the absence of a metaphysical or moral analysis, either what is implied in the ascription of a right to certain appropriations, or why there should be a right to them.

212. We have then two questions, as above stated, each requiring two different methods of treatment. But neither have the questions themselves, nor the different methods of dealing with them, been duly distinguished.

It is owing to confusion between them that the right of property in things has been supposed to originate in the first occupancy of them. This supposition, in truth, merely disguises the identical proposition that in order to property there must to begin with have been some appropriation. The truism that there could be no property in anything which had not been at some time and in some manner appropriated, tells us nothing as to how or why the property in it, as a right, came to be recognised, or why that right should be recognised. But owing to the confusion between the origin of appropriation and the origin of property as a right, an identical proposition as to the beginning of appropriation seemed to be an instructive statement as to the basis of the rights of property. Of late, in a revulsion from theories founded on identical propositions, 'historical' inquiries into the 'origin of property' have come into vogue. The right method of dealing with the question has been taken to lie in an investigation of the earliest forms in which property has existed. But such investigation, however valuable in itself, leaves untouched the questions, (1) what it is in the nature of men that makes it possible for them, and moves them, to appropriate; (2) why it is that they conceive of themselves and each other as having a right in their appropriations; (3) on what ground this conception is treated as a moral authority,--as one that should be acted on.

213. (1) Appropriation is an expression of will; of the individual's effort to give reality to a conception of his own good; of his consciousness of a possible self-satisfaction as an object to be attained. It is different from mere provision to supply a future want. Such provision appears to be made by certain animals, e.g. ants. It can scarcely be made under the influence of the imagination of pain incidental to future want derived from previous experience, for the ant lays up for the winter though it has not previously lived through the winter. It may be suggested that it does so from inherited habit, but that this habit has originally arisen from an experience of pain on the part of ants in the past. Whether this is the true account of the matter we have not, I think,--perhaps from the nature of the case we cannot have--the means of deciding. We conceal our ignorance by saying that the ant acts instinctively, which is in effect a merely negative statement, that the ant is not moved to make provision for winter either by imagination of the pain which will be felt in winter if it does not, or by knowledge (conception of the fact) that such pain will be felt. In fact, we know nothing of the action of the ant from the inside, or as an expression of consciousness. If we are not entitled to deny dogmatically that it expresses consciousness at all, neither are we entitled to say that it does express consciousness, still less what consciousness it expresses. On the other hand we are able to interpret the acts of ourselves, and of those with whom we can communicate by means of signs to which we and they attach the same meaning, as expressions of consciousness of a certain kind, and thus by reflective analysis to assure ourselves that acts of appropriation in particular express a will of the kind stated; that they are not merely a passing employment of such materials as can be laid hands on to satisfy this or that want, present or future, felt or imagined, but reflect the consciousness of a subject which distinguishes itself from its wants; which presents itself to itself as still there and demanding satisfaction when this or that want, or any number of wants, have been satisfied; which thus not merely uses a thing to fill a want, and in so doing at once destroys the thing and for the time removes the want, but says to itself, 'This shall be mine to do as I like with, to satisfy my wants and express my emotions as they arise.'