Chapter I: Anti-Utilitarianism (2)

And what though it be only the most thorough-paced Utilitarians who go these extreme lengths? These lengths, extreme as they are, are legitimate deductions from tenets held in common by the most moderate and cautious as well as by the most reckless of the sect. Crime in the abstract is condemned not less vehemently by the latter than by the former; but by both equally it is condemned on account, not of its inherent vileness, but solely of its observed results. If the results were different, the agency to which they are due would be fitted with a different epithet. If a world could be conceived to be so organised, or, if this world of ours could be conceived to be so changed as that the practice of killing, stealing, or telling lies would be conducive to the general good, the practice in question would obtain a new name in the Utilitarian vocabulary. Crime would become beneficence; and to kill, to steal, or to tell lies would be not wrong, but right. These are propositions which, without abjuring the prime articles of his creed, the most timid Utilitarian has no alternative but to endorse; but how, then, can he shut his eyes to their obvious application? How presume to rebuke those earnest philanthropists, who, to judge from their habitual language, are firmly of opinion that annihilation of one half of mankind would be a small price to pay for conversion of the other moiety into citizens of a world-wide Red Republic; or those admirers of Prince Bismarck, who, holding national aggrandisement to be the national _summum bonum_, deem the most solemn treaties that might impede it to be obstacles which it is obligatory on a patriot to set aside? Will not the effects of any given cause vary with the changes in the circumstances in which the cause acts? May it not easily happen that the direct effect of some private crime shall be to augment, instead of to diminish the total happiness of all the persons affected by it? And is it not, then, conceivable that a public crime, provided it be of sufficient magnitude, may more than counterpoise, by the good it is calculated to do, all the harm that all crimes of the same description either have done or are likely to do hereafter? It is idle to reply that such a comparison between public good and evil must needs be mistaken: that the harm, for instance, which violation of treaties does to mankind by sapping the foundations of international confidence, rendering impossible international co-operation, and bringing the very name of international morality into contempt, is infinitely beyond any good it can do in the shape of national aggrandisement. Whether this be so or not is matter of opinion, on which every one may fairly insist on forming his own, and if that opinion be in the negative, a utilitarian agent, in Prince Bismarck's circumstances, would be bound in duty to imitate Prince Bismarck's high-handed policy. In all circumstances of international import, in all cases bearing upon the general interests of society, a Utilitarian, after deciding according to his lights which of the various courses open to him would best promote the general welfare, either immediately by its direct effects, or subsequently and indirectly by the example it would set, would be bound in duty to adopt that course. That course, however wrong it might have appeared in all previous cases, would now become right, as being apparently the one most conducive to the future welfare of mankind. Utilitarianism's standard of morality thus turns out to be, not any fixed and definite notion of expediency, but one liable to change with every change in individual judgment. Its boasted criterion of the right or wrong of an action is the best conjecture which the agent, with or without extrinsic advice, is able to form of the future consequences of the action. Utilitarian law, in short, resolves itself into this--that every man shall be a law unto himself. Of course no Utilitarians will acknowledge this to be their law, not even those who shape their conduct in exact conformity to it. Nevertheless, that such is the law follows necessarily from their own premises. For does not Utilitarianism sometimes--a little heedlessly, perhaps, but not the less positively--declare that the morality of an action depends not at all upon its motives, but exclusively upon its consequences? Does it not, when most guarded in its language, affirm the morality of actions to depend upon their tendencies, that is to say, on their consequences at large, and in the long run? But there can never be perfect certainty as to consequences. With regard to the future, plausible conjecture is the utmost possible; and by differing judgments different conjectures will needs be made. So that the value of the rule of conduct furnished by Utilitarianism to any individual depends upon the latter's ability, supplemented by that of any counsellors whom he may consult, to forecast events. He cannot proceed correctly, except in so far as he or they have the gift of prophecy. However dull his vision may be, he must content himself with his own blind guidance, unless he prefer as guide some one who, for aught he can tell, may be as blind as himself. And it is always for himself to judge whether he will follow advice: so that in effect every Utilitarian is his own moral law-giver; and, certainly, a worse assignment of legislative functions cannot be imagined.

But the mischievousness of Utilitarianism does not stop here. We have seen how one of its principles destroys the landmarks between right and wrong, between virtue and vice, causing each to take continually the place of its opposite. We have now to see how another of its principles obliterates all distinctions between different kinds of virtue, confounding them in one indiscriminate mass, and imparting to them a sort of general oneness not more lucid than that which, according to Mr. Curdle, is the essence of the dramatic unities.

The object which it insists upon as conduct's end and aim is the general good--the greatest possible aggregate of good or happiness for all. As the Scriptures enjoin us, whether we eat or drink, or whatsoever we do, to do all to the glory of God, so Utilitarianism exhorts us to do all for the welfare of mankind. Now, far be it from me to caricature this soul-inspiring rule by forcing it, under a strained construction, to an unnatural extreme. Fairly examined, it will be seen to make no extravagant demands on our self-denial. As Christianity, even while bidding us to seek first the kingdom of God and his righteousness, promises that all other things shall be added unto us, so Utilitarianism, even while insisting on our seeking first to please others, permits, nay, directs, us to take as much pleasure for ourselves as we can lay hold of without depriving others, since the aggregate of happiness which it is incumbent upon us to augment to the best of our ability would otherwise be less. Nay, for the same reason, it disapproves of our foregoing any pleasure of our own, the full equivalent of which is not transferred to others. The happiness which it requires us to attend to is that of a society of which each of us is a component member, and no member of which can deny himself any pleasure within his reach, and beyond the reach of others, without diminishing the total of happiness which the whole society might enjoy. 'As between his own happiness and that of others,' says Mr. Mill, 'Utilitarianism requires an agent to be as strictly impartial as a disinterested and benevolent spectator.' Thus qualified, the prescribed subordination of one's own to the general good is no such extravagantly self-denying ordinance. If for anything, it might rather be reproached for its cold, calculating equity. With reference quite as much to individual as to communal happiness it is an excellent rule of conduct, against which not a word could be said, provided only it were left to be adopted voluntarily, and were not authoritatively imposed.

Unfortunately, however, Utilitarianism allows no option in the matter. Unless we do our very utmost to promote the general weal, at whatever sacrifice to ourselves, it charges us with sin of omission. In the words of one of the ablest among able Editors, 'justice is the social idea in its highest, widest, and most binding expression.... It signifies the moral principle which obliges each so to shape his conduct and relations, his claims and his achievements, that they harmonise with the highest good of all.'[4] To which doctrine of Mr. Morley's, if other Utilitarians do not subscribe, it can only be because they are less resolutely logical. Mr. Mill, indeed, though dissenting in appearance on this point from Mr. Morley, agrees with him in substance. Even when on one occasion, distinguishing between duty and virtue, he says that there are innumerable acts and forbearances of human beings which, though either causes or hindrances of good to their fellow-creatures, lie beyond the domain of duty, and within that of virtue or merit, he goes on to assign as the sole reason for placing them in the domain of the latter that, in respect to them, it is, on the whole, for the general interest that people should be left free, thereby plainly intimating that society would be equitably entitled to insist on them if it thought proper. But conduct that can be equitably insisted on is clearly, in the strictest sense, duty; and it would be preposterous to claim merit for doing that which it would be a breach of duty to leave undone. Duties do not cease to be duties because he on whom they are incumbent is not compelled under penalty to perform them, any more than debts cease to be debts because creditors do not choose to ask for payment. All consistent utilitarian teaching points inflexibly towards Mr. Morley's conclusion, according to which justice and social virtue are absolutely identical, and according to which, also, whoever does not shape his 'conduct, &c., in harmony with the highest good of all,' does less than is due from him, while it is impossible for him to do more. For whatever he propose to do must either be or not be in the prescribed harmony. If it be, he is bound to do it. If not, he is bound not to do it. The very utmost he can do is no more than is incumbent upon him. Less than his very utmost is less than is incumbent. No action of his, therefore, can possess any merit; for mere fulfilment of obligations is reckoned not of grace, but of debt. Having done everything, he is still but an unprofitable servant; he has but done that which was his duty to do. Where, then, is the boast of virtue? It is excluded. By what law? By that of Utilitarianism, set forth in its full amplitude. Honesty and generosity, faith, truth, charity, patient endurance, and chivalrous self-devotion, all are mingled together under the name of justice, and justice itself only remains just as long as it remains identical with the largest expediency.

At this rate we cannot possibly have any virtue to plume ourselves upon. The best we can do being no more than our duly, the only reward we can claim is exemption from the punishment we should have deserved if we had not done it. Whether it be that we have abstained from killing or robbing our fellow-citizens for our own advantage, or have impoverished or half-killed ourselves in the service of the State, our meed is the same. _Loris non ureris. Non pasces in cruce corvos_, is what we are told. We may congratulate ourselves on having escaped the cat-o'-nine-tails and the gallows. Well, we have, most of us, so much self-sufficiency, that to deprive us of all ground for it might be a fault on the right side. But now comes a second and more awkward reflection. If you will not of your own accord do your duty, those to whom performance of the duty is owing have a right to use means to make you--foul means if fair means will not avail. If, then, you hesitate to do your utmost for the interests of society, society is warranted in taking measures to accelerate your movement. If you are not, or what is practically the same thing, if a numerical majority of your fellow-citizens think you are not, making the most beneficial use of your property; if it be generally considered that it would be for the greater good of the greater number to divide your park and garden into peasant properties and cottage allotments, to double the wages of the workmen in your employment, or to subject you and the likes of you to a graduated income tax for the purpose of setting up national workshops to compete with you in your own trade; and, if you do not readily enter into the same views, then the said numerical majority are not simply warranted in taking the law into their own hands and doing, in spite of you, what they think ought to be done with your property, but would be culpably remiss if they neglected so to act.

Now it is needless to dwell on the extent to which that large numerical majority of our fellow-citizens which consists of the working classes is imbued with this notion, nor, except to those who are similarly imbued, can it be necessary to insist that there is no notion of which it is more indispensable to disabuse the working-class mind. This, accordingly, I strove to do throughout a recent work of mine, 'On Labour,' particularly in the chapter which treats of the claims and rights thereof. I there earnestly pleaded that there may be, and are, private rights independent of utility which no public needs can cancel; that all which any man, or set of men, is entitled to exact from another is payment or fulfilment of what is due to him or them from that other; that unless the poverty of the many has been caused by the few, the many are not warranted in extorting relief of their wants from the few; that the mere circumstance of their being without food or work does not entitle the poor to be fed or employed by the rich, for that there is likewise a justice independent of and superior to utility, consisting simply of respect for rights, while injustice consists simply of violation of rights.

In so arguing, I ran directly counter to Utilitarianism, provoking thereby a retaliatory assault from Utilitarianism's tutelary champion, who, as readers of the 'Fortnightly Review'[5] are aware, bore down upon me with an energy no whit the less effective for being tempered with all knightly courtesy. Yet, not to say it vaingloriously, I am not conscious of having been shaken in the saddle, and I now return to the encounter with modest assurance, firmly believing mine to be the better cause, and recollecting too that in a contest with Mr. Mill, let the issue be what it may, I may at least comfort myself with the reflection

Minus turpe vinci quam contendisse decorum.

I must at the outset be permitted to remark that one or two of Mr. Mill's objections to my statements are based upon misconception of their meaning. I never questioned, but, on the contrary, have always in the distinctest terms admitted that society is perfectly at liberty to put an end to the institution of property in land. No extremest Socialist ever went beyond me in proclaiming that the 'earth was bestowed by the Creator, not on any privileged class or classes, but on all mankind and on all successive generations of men, so that no one generation can have more than a life interest in the soil, or be entitled to alienate the birthright of succeeding generations.'[6] No one more fully recognises that property in land exists only on sufferance and by concession, and that society, which made the concession, may at any moment take it back on giving full compensation to the concessioners.

Again, when asserting the inviolability of moveable, as distinguished from landed, property, I was careful to limit the assertion to property honestly acquired. I never supposed it possible to acquire by prescription 'a fee simple in an injustice.' Only, if in any particular instance it be suspected that property has been acquired by force, fraud, or robbery, I contend that the _onus probandi_ lies on him who raises the question. It is for him to show, if he can, that a commercial fortune has, as Mr. Mill suggests, been built up by 'jobbing contracts, profligate loans, or other reprehensible practices.' But if this cannot be shown, the validity of the actual possessor's title must not be impugned. Property must be treated as of innocent acquisition and derivation until proved to be of guilty. And that not merely because there could otherwise be no rights of property at all, since it must always be impossible for any owner to demonstrate that neither he nor any one of those from whom he derives ever either overreached in a bargain or failed in a contract; but also, and much more, because whether a person be or be not the rightful owner of the wealth in his possession, no one can possibly be entitled to despoil him unless the wealth can be shown to have been ill-gotten. That right must be held to be complete with which no one can show a right to interfere.

The gravest, however, of Mr. Mill's criticisms is that mine is 'a doctrine _a priori_, claiming to command assent by its own light, and to be evident by simple intuition.' This is an imputation to which I am so unaware of having laid myself open that I can account for its having been made only on the supposition that Mr. Mill, in common with most other Utilitarians, imagines that their only opponents are Intuitionists, and that it is only necessary to set aside the tenets of these in order to get their own established instead. If this were really the case, utilitarian advocacy would be a comparatively easy task. Intuitionism, whether capable or not of being disproved, is by its nature unsusceptible of decisive proof. If I, in support of the proposition that there is in the human mind an intuitive sense of any sort, were to assert that I had such a sense while you denied that you had, it would be impossible for me to prove you to be mistaken, while, unless you were mistaken as to your individual experience, I should clearly be mistaken as to the generalisation which I had based upon mine. But I never said a word about an intuitive sense of right and wrong. How could I, seeing, as no one who chooses to look can fail to see, that the instincts of untutored children prompt them to disregard all rights but their own, to spit cockchafers, rob birds' nests, and confiscate younger children's cakes and apples? All I say is that there may be and are rights independent of and even opposed to utility, and these, for reasons which shall immediately be stated, I call natural rights; but I do not say that they are intuitively perceived. As for sense of justice or of duty, or moral sense or faculty, what I understand by that is not recognition of certain rights or duties as such, but recognition of the obligation to respect whatever rights and to fulfil whatever duties are recognised, according to which definition it is mere tautology to add that the sense or faculty in question originates simultaneously with the recognition of any rights or duties. For inasmuch as rights invariably imply corresponding obligations--inasmuch as if a thing be rightfully claimed, that same thing must needs be due or owing, it is of course impossible to perceive that a thing is _owing_ without perceiving at the same moment that it _ought_ to be paid. On this account, and with this explanation, I should not scruple to speak of the moral sense as intuitive; but if for that reason I am to be called an Intuitionist, so equally must Mr. Mill, for he has said precisely the same thing. He likewise has said that 'the moral faculty, if not a part of our nature, is a natural out-growth from it, capable, in a certain small degree, of springing up spontaneously.'

II.

By my avowal of a belief in 'Natural Rights,' I feel that I must have incurred in philosophic quarters a sort of civil contempt, which I am very desirous of removing, and which will, I trust, be somewhat diminished on my proceeding to explain how few and elementary are the rights that I propose for naturalisation. They are but two in number, and they are these:--(1) Absolute right, except in so far as the same may have been forfeited by misconduct or modified by consent, to deal in any way one pleases, not noxious to other people, with one's own self or person; (2) right equally absolute to dispose similarly of the produce either of one's own honest industry, or of that of others whose rights in connection with it have been honestly acquired by oneself. I call these 'rights,' because there cannot possibly anywhere exist either the right to prevent their being exercised, or any rights with which they can clash, and because, therefore, by their freest exercise, no one can possibly be wronged, while to interfere with their exercise would be to wrong their possessor. And I call them 'natural,' because they are not artificially created, and have no need of external ratification. Whoever thinks proper to deny this--whoever, as all Utilitarians do, contends that society is entitled to interfere with the rights which I have called natural, is bound to attempt to show how society became so entitled; when for the claim he puts forward on society's behalf he will find it impossible to produce any plausible pretext, without crediting society with possession of a right belonging to that same 'natural' class, the existence of which he denies. For, as there can be no rights without corresponding obligations or duties, if it be really the right of society to deal at its discretion with the persons or effects of individuals, it must be incumbent on individuals to permit themselves and whatever is theirs to be so dealt with. Have, then, individuals incurred any such obligation? No obligation, be it remembered, can arise, except through some antecedent act of one or other or both of the parties concerned. Either a pledge of some sort must have been given or a benefit of some sort must have been received. Now undoubtedly there are no limits to the extent to which society and its individual members might have reciprocally pledged themselves. It might have been stipulated by their articles of association that society at large should do its utmost for the welfare of each of its members, and that each of its members should do his utmost for the welfare of society at large. But it is certain, either that no such compact ever was made, or that, if made, it has always been systematically set at nought. Society has never made much pretence of troubling itself about the welfare of individuals, except in certain specified particulars; so that, even if individuals had, on condition of being treated with reciprocal solicitude, accepted the obligation of attending to the welfare of society in other than the same particulars, that conditional obligation would from the commencement have been null and void. The one thing which society invariably pledges itself to do is to protect person and property, and by implication to enforce performance of contracts; and the two things which individual associates in turn pledge themselves to do are to abstain from molesting each other's persons and property, and to assist society in protecting both. In so abstaining and so assisting consist all those 'many acts and the still greater number of forbearances, the perpetual practice of which by all is,' as Mr. Mill says, 'universally deemed to be so necessary to the general well-being, that people must be held to it compulsorily, either by law or by social pressure.'[7] Under one or other of these two heads may be ranged everything that individuals owe to society in return for the mere protection which they receive from it.

True, there is an universal understanding that individuals shall be subject to any laws, whether wise or foolish, provided only they be of equal and impartial operation, which may be enacted by a numerical majority of the community to which the individuals belong; and in this manner individuals may become bound by any number of miscellaneous pledges, society acquiring simultaneously the right to hold individuals to the performance of those pledges. Thus, if by the vote of an unimpeachably representative House of Commons it were declared to be for the general good, and agreed to accordingly, that every one should be vaccinated or circumcised, it would be incumbent on every one to submit quietly to vaccination or circumcision, however deleterious the operation might be deemed by some. Or if, improving upon a hypothetical suggestion of Mr. Mill, a parliament elected by constituencies in which the labouring-class element greatly predominated, should prospectively forbid the accumulation by any individual of property beyond a specified amount, then, though the almost certain consequence would be that the prescribed limit of accumulation would not be exceeded, still if it were exceeded, the accumulator could not justly complain when the surplus was forfeited according to law. Yet even thus the obligations or duties created will correspond exactly with the pledges given; none will be incurred except such as have been imposed by special legislation--nor even those, unless the legislation have been impartial. A law requiring people to pay poor's-rates would not suffice as a pretext for requiring them to pay education rates likewise. Neither if, instead of passing the prospective law just now supposed, a governing majority which had previously always permitted the indefinite accumulation of wealth, were retrospectively to decree the forfeiture of all past accumulations beyond a defined amount, would individuals be morally bound to submit to such a decree if they could contrive to evade it, any more than sexquipedalians would be bound to lay their heads on the block in obedience to a law directing everybody six feet high to be decapitated. All such partial legislation would be tyrannical, and circumstances must be very peculiar indeed to make submission to tyranny a duty. But of all conceivable legislation, none could possibly be more partial, or therefore more tyrannical, than such as should give to society a general power of dealing at its pleasure with its associates, and of arbitrarily subjecting separate classes or individuals to exceptional treatment. Even, therefore, if a law to such monstrous effect were enacted, it could have no morally binding force. It would be no one's duty to acquiesce in it.

I will not here stop to dispute, though I am not sure that I could without some slight reservation admit, that the receipt of unasked-for benefits places the recipient under precisely the same obligation to benefit his benefactor, as if the good received by him had been conferred on express condition of his availing himself of the first opportunity to render equal good. I will not stop to dispute, for instance, that a person saved from drowning at the risk of his own rescuer's life, would be bound, on occasion arising, to risk his own life in order to save his former rescuer's. For my immediate purpose, it may suffice to remark that society has never been in the habit of showing such parental solicitude for its component members as would warrant its claiming filial devotion from them. In the matter of philanthropy its practice has never been in advance of its very moderate professions. It has invariably contented itself with rendering certain specific services, never failing to exact in return fully equivalent services of each species.

In candour, however, there must be admitted to be innumerable blessings not yet adverted to, including indeed most of those by the possession of which man is distinguished from brutes, for which he is in so far indebted to society that, but for the instrumentality of society, they would never have been his. Unless individuals had formed themselves into communities, civilization could have made no sensible progress: there could have been no considerable advances, material, intellectual, moral, or aesthetic. Not only should we have been destitute of all the comforts and luxuries that now surround us, we should have lacked also whatever cerebral development we have attained, together with all its concomitants and consequences; whatever of intelligence, or moral perceptiveness, or artistic taste we have to boast of. Still, though none of these faculties could have made much approach to maturity except under the shelter of society, they are not gifts of society. Without the help of a plough, land cannot be ploughed; but we do not therefore credit the ploughmaker with the achievements of the ploughman. Neither is society to take to itself praise because its members have made good use of the protection which, in consideration of stipulated services on their part, it has afforded them. Besides, whatever we inherit from society, we inherit from a society of members no longer in being. Let the dead come to life again, and it may then become us to examine their claims upon our gratitude, but we need not meanwhile confound past and present generations, nor our forefathers with our contemporaries. To the mass of these latter, at any rate, we are none of us indebted for our brains or our aptitudes of thought and feeling, and the circumstance of our being joint sharers with them in patrimony bequeathed by a common ancestry, affords no very obvious reason why our share of the inheritance, together with whatever else we possess, should be at their absolute disposal.

Thus it appears that in no one of the ways in which alone can originate the obligations which must always precede or accompany artificially-created rights, has that particular obligation arisen without which it is impossible for society to obtain artificially the right of preventing individuals from doing as they will with their own. No sufficient pledge has been given by one side, no sufficient benefit conferred by the other. Individuals never agreed to place their all at the disposal of society; society never rendered to individuals any services entitling it to claim such boundless gratitude. One service which it invariably undertakes is that of protecting person and property. This is its chief and primary duty, the fulfilment of which is always the first object of its institution, often the only one it acknowledges. But clearly it cannot by performance of a duty acquire the right of doing the exact reverse of that duty. It cannot by protecting acquire the right of molesting. It cannot by preventing person and property from being meddled with, acquire in its corporate capacity the right of itself meddling. Since then this right of meddling, this right of disposing of what is exclusively some individual's own, otherwise than the owner wishes, has not been acquired by society artificially, it must, if it do actually belong to society, have been come by naturally; and this accordingly is what Utilitarians really, though perhaps unconsciously, assume, treating moreover this gratuitous assumption of theirs as a self-evident truth.

For, as Utilitarians themselves cannot fail on reflection to perceive, they offer no shadow of argument in support of that 'greatest happiness principle' on which their whole system rests. Commencing with the undeniable postulate that happiness is the sole object of existence, and perceiving that individual happiness alone would be a very misleading object, they proceed to take quietly for granted that the only happiness at which life ought to aim is social happiness. Now, undoubtedly social happiness is of more importance than individual happiness--the happiness of many than that of one or a few; neither can there be any worthier object of pursuit than the greatest happiness of the greatest number. All this is seen without being said, but what is by no means so easily seen is how it can be incumbent on any one to pursue that object to his own detriment--how it can be imperative on one or on a few to sacrifice his or their happiness in order to promote that of the many. Plainly such self-devotion cannot be for their personal advantage, and Utilitarianism does not even attempt to show how it can have become their duty. Meritorious, magnanimous, heroic in the highest degree it would certainly be, but does not that very circumstance prove conclusively that it cannot be due, inasmuch as there is nothing meritorious in merely doing one's duty and paying one's debts? But of that which is not due, how can payment be rightfully insisted upon? What the few are under no obligation to yield, how can the many be entitled to extort, or how can the worthiness of the latter's object excuse their doing that which they have no right to do? Is any object, however worthy, to be pursued regardless of all collateral considerations? To these objections Utilitarians have no answer to make. All they can do is tacitly to take for granted the disputed duty and right. That the less ought to give way to the greater, and the few to the many, and that the many may rightfully therefore, if need be, use force to compel the less or the few to give way--these are treated by them as incontestable propositions, even as 'doctrines _a priori_, claiming assent by their own light, evident by simple intuition.' And although thus from their own inner consciousness evolving the very first principles of their own philosophy, the premises of their deduction that social happiness is the proper aim in life, and that conduciveness to such happiness is the test of morality--'Intuitionists,' strange to say, is the distinctive appellation which they propose to affix to all those who hesitate to accept as ethical foundation stones the results of their intuitional evolution.

Scarcely by a taunt so readily rebuttable will anti-Utilitarians be excited to speedier apprehension of the nature of the lien which corporate self-interest is presumed to have upon individual self-devotion. Not the less tenaciously may they cling to their belief in the right of every one to do as he will with whatever has come by fair means into his exclusive and complete possession. Neither, I venture to think, need less store be set by that right in consequence of an objection very adroitly taken to it by Mr. Mill, which, on account both of its inherent ingenuity and of its having been addressed more immediately to myself, it would be inexcusable in me to leave unexamined. In Mr. Mill's opinion, the right in question, even if valid, would be valueless, because it would be neutralised by precisely similar rights belonging to society. If, he argues, individuals are at liberty to do as they will with their own, so likewise must society be. But 'existing social arrangements and law itself exist in virtue not only of the forbearance, but of the active support of the labouring classes' who in every community constitute a numerical majority. This working-class majority might then if they pleased withdraw their support from existing arrangements, thereby depriving person and property of social protection; and by merely threatening such withdrawal they could compel individuals to acquiesce in their most extravagant demands. 'They might bind the rich to take the whole burden of taxation upon themselves. They might bind them to give employment, at liberal wages, to a number of labourers in a direct ratio to the amount of their incomes. They might enforce on them a total abolition of inheritance and bequest.' Mr. Mill maintains that these things, although exceedingly foolish, might according to my principles, with perfect equity be done; nay, if I understand him correctly, that according neither to mine nor to any one else's principles can any adequate reason be assigned why they should not be done, except that their practical results would be baneful instead of beneficial. And taking this view, he is fully warranted in asking what it can matter that according to my theory 'an employer does no wrong in making the use he does of his capital, if the same theory would justify the employed in compelling him by law to make a different use--if the labourers would in no way infringe the definition of justice by taking the matter into their own hands and establishing by law any modification of the rights of property which in their opinion would increase the remuneration of their labour.'[8]

My reply to this and to the whole argument is the following. So long as society continues to exist, society cannot divest itself of the primary function for the discharge of which it was originally constituted. Society, having come together in the first instance, tacitly pledged to extend protection to each individual associate, cannot, without breach of contract, withdraw that protection. It may, indeed, make any impartial laws it pleases, and attach any penalty it pleases to violation of any impartial law, but it cannot in equity, whatever it may in practice, place any of its members outside the law; neither, most certainly, even if its competence did extend thus far, could it go the farther length of conferring on any one the right of doing wrong to an outlaw. It may even be doubted whether, if an outlaw were to injure any one still belonging to the society, any but the injured person himself would be warranted in retaliating. The sole reason that I can perceive why even he would is, that his rights had been infringed, and that reparation was due to him for any damage sustained by him in consequence, while, on the other hand, the aggressor had forfeited those rights of his which might otherwise have forbidden the injured person from taking the reparation due. But society had had none of its rights infringed. By society no injury had been sustained. To society, therefore, no reparation was due; and society, it seems to me, would have no right to insist on exacting reparation not due to itself from one whom it had forcibly extruded from its communion, and who, therefore, was no longer amenable to its jurisdiction. Society might, indeed, dissolve itself, proclaiming that 'every man for himself, and God for all,' should thenceforward be the rule. But although it might thus leave individual rights without other defence than that of the owner, it could not annihilate individual rights. It might cancel the right to mutual protection, but it could not, in place of that, create a right of mutual molestation. One's own person and property would still be as much one's own as before, and whoever outraged either would not be the less a wrong doer because society permitted his wrong doing to remain unpunished. In all ethical investigations it is impossible to guard too watchfully against the smallest approach to confusion of might with right.

Instead of being valueless, the particular rights of which Mr. Mill speaks so disparagingly, appear to me to possess a value which can scarcely be exaggerated. They are, as may be readily perceived, identical with the two which I have termed 'natural,' and of which I began by saying that they are exceedingly elementary, but of which I have now to add that they are also all-comprehensive, for that there are no genuine rights whatever, however numerous or complex, which neither are included within, nor branch out from, them. This will be manifest on comparison of them with the items enumerated in any other catalogue of rights; as, for instance, with the one drawn up by Mr. Mill, according to whom all rights may be classified as follows:--(1) Legal rights; (2) moral rights; (3) the right of every one to that which he deserves; (4) the right to fulfilment of engagements; (5) right to impartiality of treatment; (6) right to equality of treatment.[9] Each of these varieties will repay a brief examination.

Under the head of 'legal' rights are commonly placed, not those only which are conferred, but those also which are confirmed, by law. Such as law has merely confirmed, however, are of course not the creatures of law. But it is admitted on all hands that a law may be unjust--that is to say, it may without consent from the parties concerned, infringe some previously existing right--and as the right so violated cannot have been created by law, inasmuch as what law had been competent to create, law would be equally competent to cancel--it is clear that there must be rights other than those created by law, rights whose origin was independent of, and anterior to, law. It is apparently to rights of this description that Mr. Mill applies the name of 'moral' rights. Examples of them are a man's rights to personal liberty and to property in whatever belongs to him as having become his by honest means, to both of which, unless he had forfeited them by misconduct, he would be equally entitled, whether his title to them were or were not recognised by law. The only genuine rights which law can create, or consequently can have to confer, are privileges in respect of person or property other than one's own. But such legalised privileges are not necessarily rights. Whether they are so actually or not depends mainly on the character of the legislative authority. A right to interfere with rights not based upon law cannot be conferred without the consent of the parties in whom the independent rights are vested, given either directly by themselves or indirectly through their representatives. If a legislative body be truly and thoroughly representative of the community which it controls, then every one of its enactments, however bad or foolish, is virtually an engagement to which every member of the community is a party, and any privilege arising out of it becomes to all intents and purposes a right. If, on the other hand, the legislative authority be autocratic, or if it represent only certain favoured sections of the community, then none of its enactments, however wise and good, of which a majority of the public disapprove, and which interfere with the rights termed by Mr. Mill 'moral,' are morally binding, except on the legislators themselves and their immediate constituents. Any one else may quite blamelessly break the law, and resist any privilege thereby created, though he must, of course, be prepared, in case of detection, to take the legal consequences of his disobedience. For example, protective duties, however impolitic, if imposed because a majority of the nation were of opinion that a certain branch of domestic industry had better be fostered by protection, could not be evaded without injustice to those engaged in the protected industry, though there would be no injustice in smuggling, if they had been imposed in opposition to the general sense of the public by a packed Parliament or an absolute monarch. The same legal monopoly, which in the one case could not be justly evaded, could not in the other be justly enforced. A legal privilege, in short, becomes a right only when a majority of those at whose expense it is to be exercised, have formally consented either directly or indirectly to its being exercised; and it then becomes a right solely because an engagement has been entered into, in virtue of which, whatever is requisite for its satisfaction has become due. Thus it appears that, whatever legal rights are genuine, and are not at the same time 'moral' rights also, resolve themselves into specimens of the right to fulfilment of engagements, and belong not more to the first than to the fourth of Mr. Mill's categories, to which latter, therefore, we may at once transfer our attention.

Why is it, then, that every one has a right to fulfilment of engagements, to have faith kept with him, to have promises observed? Solely, as it seems to me, because whatever has been promised to any one becomes eventually his due, and because whatever is due or owing ought to be paid. A promise is nothing less than a prospective transfer of property in some thing, or in the advantage derivable from some action, and when the time appointed for making the transfer arrives, whatever has been promised, whether actually transferred or not, becomes the complete property of, and in the fullest sense of the word belongs to him to whom it has been promised; so that the right to fulfilment of engagements resolves itself into the moral right of every one to have that which belongs to him, and we have already seen that every legal right which cannot on other grounds be shown to be a moral right resolves itself into a right to fulfilment of an engagement. Whence it follows that there are no legal rights whatever which are not likewise moral rights, and which might not therefore be equally rights, even though they had never been legalised. Whence, and from what has just been observed with respect to the right to fulfilment of engagements, it further follows that of the five branches of Mr. Mill's classification, the first and fourth may without inconvenience be dispensed with, and that the second will suffice to do duty for itself and for the other two.

We have next to consider a person's right to that which he deserves, with reference to which, and to my assertion that there is no necessary correspondence between the remuneration which a labourer ought to receive and either his merits or his needs, Mr. Mill inquires as follows:--'If justice be an affair of intuition, if we are guided to it by the immediate and spontaneous perceptions of the moral sense, what doctrines of justice are there on which the human race would more instantaneously and with one accord put the stamp of its recognition than these--that it is just that each should have what he deserves, and that, in the dispensation of good things, those whose wants are the most urgent should have the preference?' But surely however just it be that each should have what he deserves, it is so only on condition that he have it from those from whom it is due, and do not take it from those from whom it is not due. The latter, surely, at least as much deserve to be allowed to keep what they have already by honest means got, as others to get what they have not yet got. But if so, then that these should be deprived of their deserts, in order that those may get theirs, is surely about the very last doctrine that ought to be put forward as self-evident and intuitive. 'But,' Mr. Mill proceeds to ask, 'if there be in the natural constitution of things something patently unjust, something contrary to sentiments of justice, which sentiments, being intuitive, are supposed to have been implanted in us by the same Creator who made the order of things that they protest against--do not these sentiments impose upon us the duty of striving by all human means to repair the injustice? And if, on the contrary, we avail ourselves of it for our own personal advantage, do we not make ourselves participators in injustice, allies and auxiliaries of the Evil Principle?'[10] Now, as I have already said, I am myself no intuitionist, but if I were, I should not the less feel warranted in here replying that by no theory of justice, intuitive or other, can the passive spectator of an injustice to which he is no party be bound to assist in repairing the injustice, simply because he has the means. A creditor denied payment of his fair debts does not get what he deserves; but upon whom, except the defaulting debtor, does it therefore become incumbent to repair the latter's injustice by paying his debts? And if there be in the general order of mundane affairs, as--provided I may attribute the existence of it, as of all other evil, not to God, but to the devil--I don't mind admitting there may be--something which prevents many of our fellow-creatures from getting their desserts, something contrary, therefore, to our sentiments of justice whether those sentiments have been implanted in us by the Creator or not, I still maintain that those sentiments do not impose upon us the duty of striving to correct the injustice. They necessarily stimulate us more or less powerfully, according to their own intrinsic strength, to undertake that noblest of all tasks, but they do not render it imperative upon us. Whether, if we actively avail ourselves of the injustice for our own profit--though this, by the way, is no more than every one of us does who takes advantage of competition among labourers to obtain labour for a less price than he perceives it to be worth--we are not making ourselves auxiliaries of the Evil Principle, may be matter of opinion; but, at all events, we do not even then become participators in an injustice which we did not create, and do not uphold or help to perpetuate, but merely accommodate ourselves to. At worst, we are but accessories to it after the fact. In simply accepting the situation and striving to make the best of it for ourselves, without trying to make it better and only abstaining from making it worse for others, our conduct may be contemptible, mean, base, disgusting, or what you will, only not iniquitous; for whatever, short of their deserts, may, from the cause supposed, be received by our fellow-creatures, although in one sense plainly due to them, is as plainly not due from us, and we cannot, without palpable injustice, as well as palpable abuse of words, be charged with injustice for merely declining to pay debts that we do not owe.

The rights to impartial and to equal treatment need not detain us long. There is no right to impartiality except where impartiality is due, and it is only in a small minority of cases that impartiality is due. There is nothing iniquitous in showing favour to the extent of giving one person more than his due, provided no other person be prevented from having as much as his due. The lord of the vineyard who gave unto all his labourers alike, the same to those who had wrought for him but one hour as to those with whom he had agreed that for a penny they should bear the burden and heat of the day, did the latter no wrong; his eye was not the less good because theirs was evil. A judge, or an arbitrator, or the conductor of a competitive examination, is bound to make his award without respect of persons, because he cannot favour one without withholding from some other what that other ought to have. On every distributor of Government patronage, likewise, it is morally incumbent to select for the public for whom he is trustee, the best servants he can find. An English Prime Minister has no right to make his son a Lord of the Treasury or of the Admiralty, if he know of any one better fitted for the post and willing to accept it; and if he name any but the fittest candidate, he fails in his duty to the community on whose behalf he acts. But a private employer, acting for himself alone, is under no similar obligation, and may take whom he pleases into his service, and assign to him whatever position therein he pleases, without affording any cause for reasonable complaint to those more capable members of his establishment whom he places under one less capable. In short, except in those rare cases in which impartiality means rendering what is due, in which cases it is but another name for justice, there is nothing unjust in disregarding it.