II. 'LIBERTY, EQUALITY, FRATERNITY'
Meanwhile, however, he had been putting much energy into another task. He had for some time delivered his tale of articles to the 'Pall Mall Gazette' as of old. He was soon to become tired of anonymous journalism; but he now produced a kind of general declaration of principles which, though the authorship was no secret and was soon openly acknowledged, appeared in the old form, and, as it turned out, was his last work of importance in that department. It was in some ways the most characteristic of all his writings. He put together and passed through the 'Pall Mall Gazette' during the last months of 1872 and January 1873 the series of articles already begun during his voyage. They were collected and published with his name in the following spring as 'Liberty, Equality, Fraternity.' I confess that I wondered a little at the time that the editor of a newspaper should be willing to fill his columns with so elaborate a discourse upon first principles; and I imagine that editors of the present day would be still more determined to think twice before they allowed such latitude even to the most favoured contributor. I do not doubt, however, that Mr. Greenwood judged rightly. The letters were written with as much force and spirit as anything that Fitzjames ever produced. I cannot say how they affected the paper, but the blows told as such things tell. They roused the anger of some, the sympathy of others, and the admiration of all who liked to see hard hitting on any side of a great question. The letters formed a kind of 'Apologia' or a manifesto—the expression, as he frequently said, of his very deepest convictions. I shall therefore dwell upon them at some length, because he had never again the opportunity of stating his doctrines so completely. Those doctrines are far from popular, nor do I personally agree with them. They are, however, characteristic not merely of Fitzjames himself, but of some of the contemporary phases of opinion. I shall therefore say something of their relation to other speculations; although for my purpose the primary interest is the implied autobiography.
The book was perhaps a little injured by the conditions under which it was published. A series of letters in a newspaper, even though, as in this case, thought out some time beforehand, does not lend itself easily to the development of a systematic piece of reasoning. The writer is tempted to emphasise unduly the parts of his argument which are congenial to the journalistic mode of treatment. It is hard to break up an argument into fragments, intended for separate appearance, without somewhat dislocating the general logical framework. The difficulty was increased by the form of the argument. In controverting another man's book, you have to follow the order of his ideas instead of that in which your own are most easily expounded. Fitzjames, indeed, gives a reason for this course. He accepts Mill's 'Liberty' as the best exposition of the popular view. Acknowledging his great indebtedness to Mill, he observes that it is necessary to take some definite statement for a starting point; and that it is 'natural to take the ablest, the most reasonable, and the clearest.' Mill, too, he says, is the only living author with whom he 'agrees sufficiently to argue with him profitably.' He holds that the doctrines of Mill's later books were really inconsistent with the doctrines of the 'Logic' and 'Political Economy.' He is therefore virtually appealing from the new Utilitarians to the old. 'I am falling foul,' he says in a letter, 'of John Mill in his modern and more humane mood—or, rather, I should say, in his sentimental mood—which always makes me feel that he is a deserter from the proper principles of rigidity and ferocity in which he was brought up.' Fitzjames was thus writing as an orthodox adherent of the earlier school. He had sat at the feet of Bentham and Austin, and had found the most congenial philosophy in Hobbes. And yet his utilitarianism was mingled with another strain; and one difficulty for his readers is precisely that his attack seems to combine two lines of argument not obviously harmonious. Still, I think that his main position is abundantly clear.
Fitzjames—as all that I have written may go to prove—was at once a Puritan and a Utilitarian. His strongest sympathies and antipathies were those which had grown up in the atmosphere of the old evangelical circle. On this side, too, he had many sympathies with the teaching of Carlyle, himself a spiritual descendant of the old Covenanters. But his intellect, as I have also remarked, unlike Carlyle's, was of the thoroughly utilitarian type. Respect for hard fact, contempt for the mystical and the dreamy; resolute defiance of the à priori school who propose to override experience by calling their prejudices intuitions, were the qualities of mind which led him to sympathise so unreservedly with Bentham's legislative theories and with Mill's 'Logic.' Let us, before all things, be sure that our feet are planted on the solid earth and our reason guided by verifiable experience. All his studies, his legal speculations, and his application of them to practice, had strengthened and confirmed these tendencies. How were they to be combined with his earlier prepossessions?
The alliance of Puritan with utilitarian is not in itself strange or unusual. Dissenters and freethinkers have found themselves side by side in many struggles. They were allied in the attack upon slavery, in the advocacy of educational reforms, and in many philanthropic movements of the early part of this century. James Mill and Francis Place, for example, were regarded as atheists, and were yet adopted as close philanthropic allies by Zachary Macaulay and by the quaker William Allen. A common antipathy to sacerdotalism brought the two parties together in some directions, and the Protestant theory of the right of private judgment was in substance a narrower version of the rationalist demand for freedom of thought. Protestantism in one aspect is simply rationalism still running about with the shell on its head. This gives no doubt one secret of the decay of the evangelical party. The Protestant demand for a rational basis of faith widened among men of any intellectual force into an inquiry about the authority of the Bible or of Christianity. Fitzjames had moved, reluctantly and almost in spite of himself, very far from the creed of his fathers. He could not take things for granted or suppress doubts by ingenious subterfuges. And yet, he was so thoroughly imbued with the old spirit that he could not go over completely to its antagonists. To destroy the old faith was still for him to destroy the great impulse to a noble life. He held in some shape to the value of his creed, even though he felt logically bound to introduce a 'perhaps.'
This, however, hardly gives the key to his first difference with the utilitarians, though it greatly affects his conclusions. He called himself, as I have said, a Liberal; but there were, according to him, two classes of Liberals, the intellectual Liberals, whom he identified with the old utilitarians, and the Liberals who are generally described as the Manchester school. Which of those was to be the school of the future, and which represented the true utilitarian tradition? Here I must just notice a fact which is not always recognised. The utilitarians are identified by most people with the (so-called) Manchester doctrines. They are regarded as advocates of individualism and the laissez-faire or, as I should prefer to call it, the let-alone principle. There was no doubt a close connection, speaking historically; but a qualification must be made in a logical sense, which is very important for my purpose. The tendency which Fitzjames attacked as especially identified with Mill's teaching—the tendency, namely, to restrict the legitimate sphere of government—is far from being specially utilitarian. It belonged more properly to the adherents of the 'rights of man,' or the believers in abstract reason. It is to be found in Price and Paine, and in the French declaration of the rights of man; and Mr. Herbert Spencer, its chief advocate (in a new form) at the present day remarks himself that he was partly anticipated by Kant. Bentham expressly repudiated this view in his vigorous attack upon the 'anarchical fallacies' embodied in the French declaration. In certain ways, moreover, Bentham and his disciples were in favour of a very vigorous Government action. Bentham invented his Panopticon as a machine for 'grinding rogues honest,' and proposed to pass paupers in general through the same mill. His constitutional code supposes a sort of omnipresent system of government, and suggests a national system of education and even a national church—with a very diluted creed. As thorough-going empiricists, the utilitarians were bound to hold, and did, in fact, generally declare themselves to hold, not that Government interference was wrong in general, but simply that there was no general principle upon the subject. Each particular case must be judged by its own merits.
Historically speaking, the case was different. The political economy of Ricardo and the Mills was undoubtedly what is now called thoroughly 'individualistic.' Its adherents looked with suspicion at everything savouring of Government action. This is in part one illustration of the general truth that philosophies of all kinds are much less the real source of principles than the theories evoked to justify principles. Their course is determined not by pure logic alone, but by the accidents of contemporary politics. The revolutionary movement meant that governments in general were, for the time, the natural enemies of 'reason.' Philosophers who upon any ground sympathised with the movement took for their watchword 'liberty,' which, understood absolutely, is the antithesis to all authority. They then sought to deduce the doctrine of liberty from their own philosophy, whatever that might be. The à priori school discovered that kings and priests and nobles interfered with a supposed 'order of nature,' or with the abstract 'rights of man.' The utilitarian's argument was that all government implies coercion; that coercion implies pain; and therefore that all government implies an evil which ought to be minimised. They admitted that, though 'minimised,' it should not be annihilated. Bentham had protested very forcibly that the 'rights of man' doctrine meant anarchy logically, and asserted that government was necessary, although a necessary evil. But the general tendency of his followers was to lay more stress upon the evil than upon the necessity. The doctrine was expounded with remarkable literary power by Buckle,[119] who saw in all history a conflict between protection and authority on the one hand and liberty and scepticism on the other.
J. S. Mill had begun as an unflinching advocate of the stern old utilitarianism of his father and Ricardo. He had become, as Fitzjames observes, 'humane' or 'sentimental' in later years. He tried, as his critics observe, to soften the old economic doctrines and showed a certain leaning to socialism. In regard to this part of his teaching, in which Fitzjames took little interest, I shall only notice that, whatever his concessions, he was still in principle an 'individualist.' He maintained against the Socialists the advantages of competition; and though his theory of the 'unearned increment' looks towards the socialist view of nationalisation of the land, he seems to have been always in favour of peasant proprietorship, and of co-operation as distinguished from State socialism. Individualism, in fact, in one of its senses, for like other popular phrases it tends to gather various shades of meaning, was really the characteristic of the utilitarian school. Thus in philosophy they were 'nominalists,' believing that the ultimate realities are separate things, and that abstract words are mere signs calling up arbitrary groups of things. Politically, they are inclined to regard society as an 'aggregate,' instead of an 'organism.' The ultimate units are the individual men, and a nation or a church a mere name for a multitude combined by some external pressure into a collective mass of separate atoms.[120] This is the foundation of Mill's political theories, and explains the real congeniality of the let-alone doctrines to his philosophy. It gives, too, the key-note of the book upon 'Liberty,' which Fitzjames took for his point of assault. Mill had been profoundly impressed by Tocqueville, and, indeed, by an order of reflections common to many intelligent observers. What are to be the relations between democracy and intellectual culture? Many distinguished writers have expressed their forebodings as to the future. Society is in danger of being vulgarised. We are to be ground down to uniform and insignificant atoms by the social mill. The utilitarians had helped the lower classes to wrest the scourge from the hands of their oppressors. Now the oppressed had the scourge in their own hands; how would they apply it? Coercion looked very ugly in the hands of a small privileged class; but when coercion could be applied by the masses would they see the ugliness of it? Would they not use the same machinery in order to crush the rich and the exalted, and take in the next place to crushing each other? Shall we not have a dead level of commonplace and suffer, to use the popular phrase, from a 'tyranny of the majority,' more universal and more degrading than the old tyranny of the minority? This was the danger upon which Mill dwelt in his later works. In his 'Liberty' he suggests the remedy. It is nothing less than the recognition of a new moral principle. Mankind, he said, individually or collectively, are justified in interference with others only by the need of 'self-protection.' We may rightfully prevent a man from hurting his neighbour, but not from hurting himself. If we carefully observe this precaution the individual will have room to expand, and we shall cease to denounce all deviations from the common type.
Here Fitzjames was in partial sympathy with his antagonist. He reviewed 'Liberty' in the 'Saturday Review' upon its first appearance; and although making certain reservations, reviewed it with warm approbation. Mill and he were agreed upon one point. A great evil, perhaps the one great evil of the day, as Fitzjames constantly said, is the prevalence of a narrow and mean type of character; the decay of energy; the excessive devotion to a petty ideal of personal comfort; and the systematic attempt to turn our eyes away from the dark side of the world. A smug, placid, contemptible optimism is creeping like a blight over the face of society, and suppressing all the grander aspirations of more energetic times. But in proportion to Fitzjames's general agreement upon the nature of the evil was the vehemence of his dissent from the suggested remedy. He thought that, so far from meeting the evil, it tended directly to increase it. To diminish the strength of the social bond would be to enervate not to invigorate society. If Mill's principles could be adopted, everything that has stimulated men to pursue great ends would lose its interest, and we should become a more contemptible set of creatures than we are already.
I have tried to show how these convictions had been strengthened by circumstances. Fitzjames's strong patriotic feeling, his pride in the British race and the British empire, generated a special antipathy to the school which, as he thought, took a purely commercial view of politics; which regarded the empire as a heavy burthen, because it did not pay its expenses, and which looked forward to a millennium of small shopkeepers bothered by no taxes or tariffs. During the 'Pall Mall Gazette' period he had seen such views spreading among the class newly entrusted with power. Statesmen, in spite of a few perfunctory attempts at better things, were mainly engaged in paltry intrigues, and in fishing for votes by flattering fools. The only question was whether the demagogues who were their own dupes were better or worse than the demagogues who knew themselves to be humbugs. Carlyle's denunciations of the imbecility of our system began to be more congenial to his temper, and encouraged him in his heresy. Carlyle's teachings were connected with erroneous theories indeed, and too little guided by practical experience. But the general temper which they showed, the contempt for slovenly, haphazard, hand-to-mouth modes of legislation, the love of vigorous administration on broad, [intelligible] principles, entirely expressed his own feeling. Finally, in India he had, as he thought, found his ideal realised. There, with whatever shortcomings, there was at least a strong Government; rulers who ruled; capable of doing business; of acting systematically upon their convictions; strenuously employed in working out an effective system; and not trammelled by trimming their sails to catch every temporary gust of sentiment in a half-educated community. His book, he often said, was thus virtually a consideration of the commonplaces of British politics in the light of his Indian experience. He wished, he says in one of his letters, to write about India; but as soon as he began he felt that he would be challenged to give his views upon these preliminary problems: What do you think of liberty, of toleration, of ruling by military force, and so forth? He resolved, therefore, to answer these questions by themselves.
I must add that this feeling was coloured by Fitzjames's personal qualities. He could never, as I have pointed out, like Mill himself; he pronounced him to be 'cold as ice,' a mere 'walking book,' and a man whose reasoning powers were out of all proportion to his 'seeing powers.' If I were writing about Mill I should think it necessary to qualify this judgment of a man who might also be described as sensitive to excess, and who had an even feminine tenderness. But from Fitzjames's point of view the judgment was natural enough. The two men could never come into cordial relations, and the ultimate reason, I think, was what I should call Mill's want of virility. He might be called 'cold,' not as wanting in tenderness or enthusiasm, but as representing a kind of philosophical asceticism. Whether from his early education, his recluse life, or his innate temperament, half the feelings which moved mankind seemed to him simply coarse and brutal. They were altogether detestable—not the perversions which, after all, might show a masculine and powerful nature. Mill's view, for example, seemed to be that all the differences between the sexes were accidental, and that women could be turned into men by trifling changes in the law. To a man of ordinary flesh and blood, who had grounded his opinions, not upon books, but upon actual experience of life, such doctrines appear to be not only erroneous, but indicative of a hopeless thinness of character. And so, again, Fitzjames absolutely refused to test the value of the great patriotic passions which are the mainsprings of history by the mere calculus of abstract concepts which satisfied Mill. Fitzjames, like Henry VIII., 'loved a man,' and the man of Mill's speculations seemed to be a colourless, flaccid creature, who required, before all things, to have some red blood infused into his veins.
Utilitarianism of the pedantic kind—the utilitarianism which substitutes mere lay figures for men and women—or the utilitarianism which refuses to estimate anything that cannot be entered in a ledger, was thus altogether abhorrent to Fitzjames. And yet he was, in his way, a utilitarian in principle; and his reply to Mill must be given in terms of utilitarianism. To do that, it was only necessary to revert to the original principles of the sect, and to study Austin and Bentham with a proper infusion of Hobbes. Then it would be possible to construct a creed which, whatever else might be said of it, was not wanting in vigour or in danger of substituting abstractions for concrete realities. I shall try to indicate the leading points of this doctrine without following the order partly imposed upon Fitzjames by his controversial requirements. Nor shall I inquire into a question not always quite clear, namely, whether his interpretation of Mill's principles was altogether correct.
One fundamental ground is common to Fitzjames and his antagonist. It is assumed in Austin's analysis of 'law,' which is accepted by both.[121] Law properly means a command enforced by a 'sanction.' The command is given by a 'sovereign,' who has power to reward or punish, and is made effectual by annexing consequences, painful or pleasurable, to given lines of conduct. The law says, 'Thou shalt not commit murder'; and 'shalt not' means 'if you commit murder you shall be hanged.' Nothing can be simpler or more obviously in accordance with common sense. Abolish the gaoler and the hangman and your criminal law becomes empty words. Moreover, the congeniality of this statement to the individualist point of view is obvious. Consider men as a multitude of independent units, and the problem occurs, How can they be bound into wholes? What must be the principle of cohesion? Obviously some motive must be supplied which will operate upon all men alike. Practically that means a threat in the last resort of physical punishment. The bond, then, which keeps us together in any tolerable order is ultimately the fear of force. Resist, and you will be crushed. The existence, therefore, of such a sanction is essential to every society; or, as it may be otherwise phrased, society depends upon coercion.
This, moreover, applies in all spheres of action. Morality and religion 'are and always must be essentially coercive systems.'[122] They restrain passion and restrain it by appealing to men's hopes and fears—chiefly to their fears. For one man restrained by the fear of the criminal law, a vast number are restrained by the 'fear of the disapprobation of their neighbours, which is the moral sanction, or by the fear of punishment in a future state of existence, which is the religious sanction, or by the fear of their own disapprobation, which may be called the conscientious sanction, and may be regarded as a compound case of the other 'two.'[123] An objection, therefore, to coercion would be an objection to all the bonds which make association possible; it would dissolve equally states, churches, and families, and make even the peaceful intercourse of individuals impossible. In point of fact, coercion has built up all the great churches and nations. Religions have spread partly by military power, partly by 'threats as to a future state,'[124] and always by the conquest of a small number of ardent believers over the indifferent mass. Men's lives are regulated by customs as streams are guided by dams and embankments. The customs like the dams are essentially restraints, and moreover restraints imposed by a small numerical minority, though they ultimately become so familiar to the majority that the restraint is not felt. All nations have been built up by war, that is, by coercion in its sternest form. The American civil war was the last and most striking example. It could not ultimately be settled by conveyancing subtleties about the interpretation of clauses in the Constitution, but by the strong hand and the most energetic faith.[125] War has determined whether nations are to be and what they are to be. It decides what men shall believe and in what mould their religion, laws, morals, and the whole tone of their lives shall be cast.[126]
Nor does coercion disappear with the growth of civilisation. It is not abolished but transformed. Lincoln and Moltke commanded a force which would have crushed Charlemagne and his paladins and peers like so many eggshells.[127] Scott, in the 'Fair Maid of Perth,' describes the 'Devil's Dick of Hellgarth' who followed the laird of Wamphray, who rode with the lord of Johnstone, who was banded with the Earl of Douglas, and earl, and lord, and laird, and the 'Devil's Dick' rode where they pleased and took what they chose. Does that imply that Scotland was then subject to force, and that now force has disappeared? No; it means that the force that now stands behind a simple policeman is to the force of Douglas and his followers as the force of a line of battle ship to the force of an individual prize-fighter.[128] It works quietly precisely because it is overwhelming. Force therefore underlies and permeates every human institution. To speak of liberty taken absolutely as good is to condemn all social bonds. The only real question is in what cases liberty is good, and how far it is good. Buckle's denunciation of the 'spirit of protection' is like praising the centrifugal and reviling the centripetal force. One party would be condemning the malignity of the force which was dragging us all into the sun, and the other the malignity of the force which was driving us madly into space. The seminal error of modern speculation is shown in this tendency to speak as advocates of one of different forces, all of which are necessary to the harmonious government of conduct.[129]
This insistence upon the absolute necessity of force or coercion, upon the theory that, do what you will, you alter only the distribution, not the general quantity of force, is the leading principle of the book. Compulsion and persuasion go together, but the 'lion's share' of all the results achieved by civilisation is due to compulsion. Parliamentary government is a mild and disguised form of compulsion[130] and reforms are carried ultimately by the belief that the reformers are the strongest. Law in general is nothing but regulated force,[131] and even liberty is from the very nature of things dependent upon power, upon the protection, that is, of a powerful, well-organised intelligent government.[132] Hobbes's state of war simply threw an unpopular truth 'into a shape likely to be misunderstood.' There must be war, or evils worse than war. 'Struggles there must always be unless men stick like limpets or spin like weathercocks.'[133]
Hence we have our problem: liberty is good, not as opposed to coercion in general, but as opposed to coercion in certain cases. What, then, are the cases? Force is always in the background, the invisible bond which corresponds to the moral framework of society. But we have still to consider what limits may be laid down for its application. The general reply of a Utilitarian must of course be an appeal to 'expediency.' Force is good, says Fitzjames, following Bentham again, when the end to be attained is good, when the means employed are efficient, and when, finally, the cost of employing them is not excessive. In the opposite cases, force of course is bad. Here he comes into conflict with Mill. For Mill tries to lay down certain general rules which may define the rightful limits of coercive power. Now there is a prima facie ground of suspicion to a sound utilitarian about any general rules. Mill's rules were of course regarded by himself as based upon experience. But they savoured of that absolute à priori method which professes to deduce principles from abstract logic. Here, therefore, he had, as his opponent thought, been coquetting with the common adversary and seduced into grievous error. A great part of the argument comes to this: Mill advocates rules to which, if regarded as practical indications of certain obvious limitations to the utility of Government interference, Fitzjames has no objection. But when they are regarded as ultimate truths, which may therefore override even the principle of utility itself, they are to be summarily rejected. Thus, as we shall see, the practical differences are often less than appears. It is rather a question of the proper place and sphere of certain rules than of their value in particular cases. Yet at bottom there is also a profound divergence. I will try to indicate the main points at issue.
Mill's leading tenet has been already stated; the only rightful ground of coercing our neighbours is self-protection. Using the Benthamite terminology, we may say that we ought never to punish self-regarding conduct, or again interpolating the utilitarian meaning of 'ought' that such punishment cannot increase the general happiness. Fitzjames complains that Mill never tries to prove this except by adducing particular cases. Any attempt to prove it generally, would, he thinks, exhibit its fallacy. For, in brief, the position would really amount to a complete exclusion of the moral element from all social action. Men influence each other by public opinion and by law. Now if we take public opinion, Mill admits, though he disputes the inference from the admission, that a man must suffer the 'inconveniences strictly inseparable from the unfavourable opinion of others.' But men are units, not bundles of distinct qualities, some self-regarding, and others 'extra-regarding.' Everyone has the strongest interest in the character of everyone else. A man alone in the world would no more be a man than a hand without a body would be a hand.[134] We cannot therefore be indifferent to character because accidentally manifested in ways which do or do not directly and primarily affect others. Drunkenness, for example, may hurt a man's health or it may make him a brute to his wife or neglectful of his social duties. As moralists we condemn the drunkard, not the results of his conduct, which may be this or that according to circumstances. To regard Mill's principle as a primary moral axiom is, therefore, contradictory. It nullifies all law, moral or other, so far as it extends. But if Mill's admission as to the 'unfavourable opinions' is meant to obviate this conclusion, his theory merely applies to positive law. In that case it follows that the criminal law must be entirely divorced from morality. We shall punish men not as wicked but as nuisances. To Fitzjames this position was specially repulsive. His interest in the criminal law was precisely that it is an application of morality to conduct. Make it a mere machinery for enabling each man to go his own way, virtuous or vicious, and you exclude precisely the element which constituted its real value. Mill, when confronted with some applications of his theory, labours to show that though we have no right to interfere with 'self-regarding' vice, we may find reasons for punishing conspiracies in furtherance of vice. 'I do not think,' replies Fitzjames, 'that the state ought to stand bandying compliments with pimps.' It ought not to say that it can somehow find an excuse for calling upon them to desist from 'an experiment in living' from which it dissents. 'My feeling is that if society gets its grip on the collar of such a fellow, it should say to him, "You dirty fellow, it may be a question whether you should be suffered to remain in your native filth untouched, or whether my opinion should be printed by the lash on your bare back. That question will be determined without the smallest reference to your wishes or feelings, but as to the nature of my opinion about you there can be no doubt."'[135]
Hence the purely 'deterrent' theory of punishment is utterly unsatisfactory. We should punish not simply to prevent crime, but to show our hatred of crime. Criminal law is 'in the nature of a persecution of the grosser forms of vice, and an emphatic assertion of the principle that the feeling of hatred and the desire of vengeance above mentioned, (i.e. the emotion, whatever its proper name, produced by the contemplation of vice on healthily constituted minds) 'are important elements in human nature, which ought in such cases to be satisfied in a regular public and legal manner.[136] This is one of the cases in which Fitzjames fully recognises the importance of some of Mill's practical arguments, though he disputes their position in the theory. The objections to making men moral by legislation are, according to him, sufficiently recognised by the Benthamite criterion condemning inadequate or excessively costly means. The criminal law is necessarily a harsh and rough instrument. To try to regulate the finer relations of life by law, or even by public opinion, is 'like trying to pull an eyelash out of a man's eye with a pair of tongs: they may pull out the eye, but they will never get hold of the eyelash.'[137] But it is not the end, but the means that are objectionable. Fitzjames does not object in principle even to sumptuary laws. He can never, he says, look at a lace machine, and think of all the toil and ingenuity wasted, with patience.[138] But he admits that repressive laws would be impossible now, though in a simpler age they may have been useful. Generally, then, the distinction between 'self-regarding' and 'extra-regarding' conduct is quite relevant, so far as it calls attention to the condition of the probable efficacy of the means at our disposal. But it is quite irrelevant in a definition of the end. The end is to suppress immorality, not to obviate particular inconveniences resulting from immorality; and one great use of the criminal law is that, in spite of its narrow limitations, it supplies a solid framework round which public opinion may consolidate itself. The sovereign is, in brief, a great teacher of the moral law so far as his arm can reach.
The same principles are applied in a part of the book which probably gave more offence than any other to his Liberal opponents. The State cannot be impartial in regard to morals, for morality determines the bonds which hold society together. Can it, then, be indifferent in regard to religions? No; for morality depends upon religion, and the social bond owes its strength to both. The state can be no more an impartial bystander in one case than in the other. The 'free Church in a free State' represents a temporary compromise, not an ultimate ideal. The difference between Church and State is not a difference of provinces, but a difference of 'sanctions.' The spiritual and the secular sanctions apply to the same conduct of the same men. Both claim to rule all life, and are ultimately compelled to answer the fundamental questions. To separate them would be to 'cut human life in two,' an attempt ultimately impossible and always degrading. To answer fundamental questions, says Mill, involves a claim to infallibility. No, replies Fitzjames, it is merely a claim to be right in the particular case, and in a case where the responsibility of deciding is inevitably forced upon us. If the state shrinks from such decisions, it will sink to be a mere police, or, more probably, will at last find itself in a position where force will have to decide what the compromise was meant to evade. Once more, therefore, the limits of state action must be drawn by expediency, not by an absolute principle. The Benthamite formula applies again. Is the end good, and are the means adequate and not excessively costly? Mill's absolute principle would condemn the levy of a shilling for a school, if the ratepayer objected to the religious teaching. Fitzjames's would, he grants, justify the Inquisition, unless its doctrines could be shown to be false or the means of enforcing them excessive or inadequate—issues, he adds, which he would be quite ready to accept.[139] Has, then, a man who believes in God and a future life a moral right to deter others from attacking those doctrines by showing disapproval? Yes, 'if and in so far as his opinions are true.'[140] To attack opinions on which the framework of society depends is, and ought to be, dangerous. It should be done, if done at all, sword in hand. Otherwise the assailant deserves the fate of the Wanderer in Scott's ballad:
Curst be the coward that ever he was born
That did not draw the sword before he blew the horn.[141]
Such opinions seem to justify persecution in principle. Fitzjames discusses at some length the case of Pontius Pilate, to which I may notice he had often applied parallels from Ram Singh and other Indian experiences. Pontius Pilate was in a position analogous to that of the governor of a British province. He decides that if Pilate had acted upon Mill's principles he would have risked 'setting the whole province in a blaze.' He condemns the Roman persecutors as 'clumsy and brutal'; but thinks that they might have succeeded 'in the same miserable sense in which the Spanish Inquisition succeeded,' had they been more systematic, and then would at least not have been self-stultified. Had the Roman Government seen the importance of the question, the strife, if inevitable, might have been noble. It would have been a case of 'generous opponents each working his way to the truth from opposite sides,' not the case of a 'touching though slightly hysterical victim, mauled from time to time by a sleepy tyrant in his intervals of fury.'[142] Still, it will be said, there would have been persecution. I believe that there was no man living who had a more intense aversion than Fitzjames to all oppression of the weak, and, above all, to religious oppression. It is oddly characteristic that his main precedent is drawn from our interference with Indian creeds. We had enforced peace between rival sects; allowed conversion; set up schools teaching sciences inconsistent with Hindoo (and with Christian?) theology; protected missionaries and put down suttee and human sacrifices. In the main, therefore, we had shown 'intolerance' by introducing toleration. Fitzjames had been himself accused, on the occasion of his Native Marriages Bill, with acting upon principles of liberty, fraternity, and equality. His point, indeed, is that a government, even nervously anxious to avoid proselytism, had been compelled to a upon doctrines inconsistent with the religions of its subjects. I will not try to work out this little logical puzzle. In fact, in any case, he would really have agreed with Mill, as he admits, in regard to every actual question of the day. He admitted that the liberal contention had been perfectly right under the special circumstances. Their arguments were quite right so long as they took the lower ground of expediency, though wrong when elevated to the position of ultimate principles, overruling arguments from expediency.[143] Toleration, he thinks, is in its right place as softening and moderating an inevitable conflict. The true ground for moral tolerance is that 'most people have no right to any opinion whatever upon these subjects,' and he thinks that 'the ignorant preacher' who 'calls his betters atheists is not guilty of intolerance, but of rudeness and ignorance.'[144]
I must confess that this makes upon me the impression that Fitzjames was a little at a loss for good arguments to support what he felt to be the right mode of limiting his principles. The difficulty was due, I think, to the views which he shared with Mill. The utilitarian point of view tends to lower the true ground of toleration, because it regards exclusively the coercive elements of law. I should hold that free thought is not merely a right, but a duty, the exercise of which should be therefore encouraged as well as permitted; and that the inability of the coarse methods of coercion to stamp out particular beliefs without crushing thought in general, is an essential part of the argument, not a mere accident of particular cases. Our religious beliefs are not separate germs, spreading disease and capable of being caught and suppressed by the rough machinery of law, but parts of a general process underlying all law, and capable of being suppressed only at the cost of suppressing all mental activity. The utilitarian conception dwells too much upon the 'sanctions,' and too little on the living spirit, of which they are one expression.
Fitzjames's view may so far be summed up by saying that he denies the possibility of making the state a neutral in regard to the moral and religious problems involved. Morality, again, coincides with 'utility '; and the utility of laws and conduct in general is the criterion which we must apply to every case by the help of the appropriate experience. We must therefore reject every general rule in the name of which this criterion may be rejected. This applies to Mill's doctrine of equality, as well as to his doctrine of non-interference. I pass over some comparatively commonplace remarks upon the inconsistency of 'liberty' and 'equality.' The most unequivocal contradiction comes out in regard to Mill's theory of the equality of the sexes. There was no dogma to which Mill was more attached or to which Fitzjames was more decidedly opposed. The essence of the argument, I take it, is this: [145] A just legislator, says Mill, will treat all men as equals. He must mean, then, that there are no such differences between any two classes of men as would affect the expediency of the applying the same laws to both. What is good for one must therefore be good for another. Now, in the first place, as Fitzjames urges, there is no presumption in favour of this hypothesis; and, in the next place, it is obviously untrue in some cases. Differences of age, for example, must be taken into account unless we accept the most monstrous conclusions. How does this apply to the case of sex? Mill held that the difference in the law was due simply to the superiority of men to women in physical strength. Fitzjames replies that men are stronger throughout, stronger in body, in nerve and muscle, in mind and character. To neglect this fact would be silly; but if we admit it, we must admit its relevance to legislation. Marriage, for example, is one of the cases with which law and morality are both compelled to deal. Now the marriage contract necessarily involves the subordination of the weaker to the stronger. This, says Fitzjames, is as clearly demonstrable as a proposition of Euclid.[146] For, either the contract must be dissoluble at will or the rule must be given to one, and if to one, then, as every one admits, to the husband. We must then choose between entire freedom of divorce and the subordination of the wife. If two people are indissolubly connected and differ in opinions, one must give way. The wife, thinks Fitzjames, should give way as the seaman should give way to his captain; and to regard this as humiliating is a mark not of spirit but of a 'base, unworthy, mutinous disposition.'[147] If, to avoid this, you made marriage dissoluble, you would really make women the slaves of their husbands. In nine cases out of ten, the man is the most independent, and could therefore tyrannise by the threat of dismissing his wife. By trying to forbid coercion, you do not really suppress it, but make its action arbitrary.
He apologises to a lady in a letter referring to another controversy upon the same subject in which he had used rather strong language about masculine 'superiority.' 'When a beast is stirred up,' he says, 'he roars rather too loud,' and 'this particular beast loves and honours and worships women more than he can express, and owes most of the happiness of his life to them.' By 'superior' he only meant 'stronger'; and he only urges a 'division of labour,' and a correspondence between laws and facts. This was, I think, strictly true, and applies to other parts of his book. Partly from pugnacity and partly from [contempt] of sentimentalism, he manages to put the harsher side of his opinions in front. This appears as we approach the ultimate base of his theory.
I have spoken more than once of Fitzjames's respect for Hobbes. For Hobbes's theory of sovereignty, and even its application by the ultramontane De Maistre, had always an attraction for him. Hobbes, with his logical thoroughness, seems to carry the foundations of policy down to the solid rock-bed of fact. Life is a battle; it is the conflict of independent atoms; with differing aims and interests. The strongest, in one way or other, will always rule. But the conflict may be decided peacefully. You may show your cards instead of playing out the game; and peace may be finally established though only by the recognition of a supreme authority. The one question is what is to be the supreme authority? With De Maistre it was the Church; with Fitzjames as with Hobbes it was the State. The welfare of the race can only be secured by order; order only by the recognition of a sovereign; and when that order, and the discipline which it implies, are established, force does not cease to exist: on the contrary, it is enormously increased in efficacy; but it works regularly and is distributed harmoniously and systematically instead of appearing in the chaotic clashing of countless discordant fragments. The argument, which is as clear as Euclid in the case of marriage, is valid universally. Society must be indissoluble; and to be indissoluble must recognise a single ultimate authority in all disputes. Peace and order mean subordination and discipline, and the only liberty possible is the liberty which presupposes such 'coercion.' The theory becomes harsh if by 'coercion' we mean simply 'physical force' or the fear of pain. A doctrine which made the hangman the ultimate source of all authority would certainly show brutality. But nothing could be farther from Fitzjames's intention than to sanction such a theory. His 'coercion' really includes an appeal to all the motives which make peace and order preferable to war and anarchy. But it is, I also think, a defect in the book that he does not clearly explain the phrase, and that it slips almost unconsciously into the harsher sense. He tells us, for example, that 'force is dependent upon persuasion and cannot move without it.'[148] Nobody can rule without persuading his fellows to place their force at his disposal; and therefore he infers 'persuasion is a kind of force.' It acts by showing people the consequences of their conduct. He calls controversy, again, an 'intellectual warfare,' which, he adds, is far more searching and effective than legal persecution. It roots out the weaker opinion. And so, when speaking of the part played by coercion in religious developments, he says that 'the sources of religion lie hid from us. All that we know is that now and again in the course of ages someone sets to music the tune which is haunting millions of ears. It is caught up here and there, and repeated till the chorus is thundered out by a body of singers able to drown all discords, and to force the unmusical mass to listen to them.'[149] The word 'force' in the last sentence shows the transition. Undoubtedly force in the sense of physical and military force has had a great influence in the formation both of religions and nations. We may say that such force is 'essential'; as a proof of the energy and often as a condition of the durability of the institutions. But the question remains whether it is a cause or an effect; and whether the ultimate roots of success do not lie in that 'kind of force' which is called 'persuasion'; and to which nobody can object. If coercion be taken to include enlightenment, persuasion, appeals to sympathy and sentiment, and to imagination, it implies an ultimate social groundwork very different from that generally suggested by the word. The utilitarian and individualist point of view tends necessarily to lay stress upon bare force acting by fear and physical pain. The utilitarian 'sanctions' of law must be the hangman and the gaoler. So long as society includes unsocial elements it must apply motives applicable to the most brutal. The hangman uses an argument which everyone can understand. In this sense, therefore, force must be the ultimate sanction, though it is equally true that to get the force you must appeal to motives very different from those wielded by the executioner. The application of this analogy of criminal law to questions of morality and religion affects the final conclusions of the book.
Fitzjames's whole position, if I have rightly interpreted him, depends essentially upon his moral convictions. The fault which he finds with Mill is precisely that Mill's theory would unmoralise the state. The state, that is, would be a mere association for mutual insurance against injury instead of an organ of the moral sense of the community. What, then, is morality? How are we to know what is right and wrong, and what are our motives for approving and disapproving the good and the bad? Fitzjames uses phrases, especially in his letters, where he is not arguing against an adversary, which appear to be inconsistent, if not with utilitarianism, at least with the morality of mere expediency. Lord Lytton, some time after this, wrote to him about his book, and he replies to the question, 'What is a good man?'—'a man so constituted that the pleasure of doing a noble thing and the pain of doing a base thing are to him the greatest of pleasures and pains.' He was fond, too, of quoting, with admiration, Kant's famous saying about the sublimity of the moral law and the starry heavens. The doctrine of the 'categorical imperative' would express his feelings more accurately than Bentham's formulæ. But his reasoning was different. He declares himself to be a utilitarian in the sense that, according to him, morality must be built upon experience. 'The rightness of an action,' he concludes, 'depends ultimately upon the conclusions at which men may arrive as to matters of fact.'[150] This, again, means that the criterion is the effect of conduct upon happiness. Here, however, we have the old difficulty that the estimate of happiness varies widely. Fitzjames accepts this view to some extent. Happiness has no one definite meaning, although he admits, in point of fact, there is sufficient resemblance between men to enable them to form such morality as actually exists.
But is such morality satisfactory? Can it, for example, give sufficient reasons for self-sacrifice—that is, neglect of my own happiness? Self-sacrifice, he replies, in a strict sense, is impossible; for it could only mean acting in opposition to our own motives of whatever kind—which is an absurdity.[151] But among real motives he admits benevolence, public spirit, and so forth, and fully agrees that they are constantly strong enough to overpower purely self-regarding motives. So far, it follows, the action of such motives may be legitimately assumed by utilitarians. He is, therefore, not an 'egoistic' utilitarian. He thinks, as he says in a letter referring to his book, that he is 'as humane and public-spirited as his neighbours.' A man must be a wretched being who does not care more for many things outside his household than for his own immediate pains and pleasures. Had he been called upon to risk health or life for any public object in India, and failed to respond, he would never have had a moment's peace afterwards. This was no more than the truth, and yet he would sometimes call himself 'selfish' in what I hold to be a non-natural sense. He frequently complains of the use of such words as 'selfishness' and 'altruism' at all. Selfishness, according to him, could merely mean that a man acts from his own motives, and altruism would mean that he acted from somebody else's motives. One phrase, therefore, would be superfluous, and the other absurd. He insists, however, that, as he puts it, 'self is each man's centre, from which he can no more displace himself than he can leap off his own shadow.'[152] Since estimates of happiness differ, the morality based upon them will also differ.[153] And from selfishness in this sense two things follow. First, I have to act upon my own individual conception of morality. If, then, I meet a person whose morality is different from mine, and who justifies what I hold to be vices, I must behave according to my own view. If I am his ruler, I must not treat him as a person making a possibly useful experiment in living, but as a vicious brute, to be restrained or suppressed by all available means. And secondly, since self is the centre, since a 'man works from himself outwards,' it is idle to propose a love of humanity as the guiding motive to morality. 'Humanity is only "I" writ large, and zeal for humanity generally means zeal for My Notions as to what men should be and how they should live.'[154]
This, therefore, leads to the ultimate question: What, in the utilitarian phrase, is the 'sanction' of morality? Here his answer is, on one side at least, emphatic and unequivocal. Mill and the positivists, according to him,[155] propose an utterly unsatisfactory motive for morality. The love of 'humanity' is the love of a mere shadowy abstraction. We can love our family and our neighbours; we cannot really care much about the distant relations whom we shall never see. Nay, he holds that a love of humanity is often a mask for a dislike of concrete human beings. He accuses Mill of having at once too high and too low an opinion of mankind.[156] Mill, he thinks, had too low an estimate of the actual average Englishman, and too high an estimate of the ideal man who would be perfectly good when all restraints were removed. He excused himself for contempt of his fellows by professing love for an abstraction. To set up the love of 'humanity,' in fact, as a governing principle is not only impracticable, but often mischievous. A man does more good, as a rule, by working for himself and his family, than by acting like a 'moral Don Quixote,[157] who is capable of making love for men in general the ground of all sorts of violence against men in particular.' Indeed, there are many men whom we ought not to love. It is hypocrisy to pretend to love the thoroughly vicious. 'I do not love such people, but hate them,' says Fitzjames; and I do not want to make them happy, because I could only do so by 'pampering their vices.'[158]
Here, therefore, he reaches the point at which his utilitarian and his Puritanical prepossessions coincide. All law, says the utilitarian, implies 'sanctions'—motives equally operative upon all members of society; and, as the last resort, so far as criminal law is concerned, the sanction of physical suffering. What is the corresponding element in the moral law? To this, says Fitzjames, no positivist can give a fair answer. He has no reply to anyone who says boldly, 'I am bad and selfish, and I mean to be bad and selfish.'[159] The positivists can only reply, 'Our tastes differ.' The great religions have answered differently. We all know the Christian answer, and 'even the Buddhists had, after a time, to set up a hell.' The reason is simple. You can never persuade the mass of men till you can threaten them. Religions which cannot threaten the selfish have no power at all; and till the positivists can threaten, they will remain a mere 'Ritualistic Social Science Association.' Briefly, the utilitarian asks, What is the sanction of morality? And the Puritan gives the answer, Hell. Here, then, apparently, we have the keystone of the arch. What is the good of government in general? To maintain the law? And what is the end of the law? To maintain morality. And why should we maintain morality? To escape hell. This, according to some of his critics, was Fitzjames's own conclusion. It represents, perhaps in a coarse form, an argument which Fitzjames was never tired of putting since the days when he worked out the theory of hell at school.
It would, however, be the grossest injustice to him if I left it to be supposed for a moment that he accepted this version of his doctrine. He repudiated it emphatically; and, in fact, he modifies the doctrine so much that the real question is, whether he does not deprive it of all force. No one was more sensible of the moral objections to the hell of popular belief. He thought that it represented the Creator as a cruel and arbitrary tyrant, whose vengeance was to be evaded by legal fictions. Still, the absolute necessity of some 'sanction' of a spiritual kind seemed clear to him. Without it, every religion would fall to pieces, as every system of government would be dissolved without 'coercion.' And this is the final conclusion of his book in chapters with which he was, as I find from his letters, not altogether satisfied. He explains in the preface to his second edition that the question was too wide for complete treatment in the limits. Briefly the doctrine seems to be this. The Utilitarian or Positivist can frame a kind of commonplace morality, which is good as far as it goes. It includes benevolence and sympathy; but hardly gets beyond ordering men to love their friends and hate their enemies. To raise morality to a higher strain, to justify what it generally called self-sacrifice, to make men capable of elevated action, they require something more. That something is the belief in God and a future world. 'I entirely agree,' he says, 'with the commonplaces about the importance of these doctrines.'[160] 'If they be mere dreams life is a much poorer and pettier thing, and mere physical comfort far more important than has hitherto been supposed. Morality, he says, depends on religion. If it be asked whether we ought to rise beyond the average utilitarian morality, he replies, 'Yes, if there is a God and a future state. No, if there is no God and no future state.'[161] And what is to be said of those doctrines, the ultimate foundation, if not of an average morality, yet of all morality above the current commonplaces? Here we have substantially the religious theory upon which I have already dwelt. He illustrates it here by quotations from Mill, who admits the 'thread of consciousness' to be an ultimate inexplicability, and by a passage from Carlyle, 'the greatest poet of the age,' setting forth the mystery of the 'Me.' He believes in a Being who, though not purely benevolent, has so arranged the universe, that virtue is the law prescribed to his creatures. The law is stern and inflexible, and excites a feeling less of love than of 'awful respect.' The facts of life are the same upon any theory; but atheism makes the case utterly hopeless. A belief in God is inextricably connected with a belief in morality, and if one decays the other will decay with it. Still it is idle to deny that the doctrines are insusceptible of proof. 'Faith says, I will, though I am not sure; Doubt says, I will not, because I am not sure; but they both agree in not being sure.'[162] He utterly repudiates all the attempts made by Newman and others to get out of the dilemma by some logical device for transmuting a mere estimate of probabilities into a conclusion of demonstrable certitude. We cannot get beyond probabilities. But we have to make a choice and to make it at our peril. We are on a pass, blinded by mist and whirling snow. If we stand still, 'we shall be frozen to death. If we take the wrong road, we shall be dashed to pieces. We do not certainly know whether there is any right one. What must we do? "Be strong and of a good courage." Act for the best, hope for the best, and take what comes. Above all let us dream no dreams and tell no lies, but go our way, wherever we may land, with our eyes open and our heads erect. If death ends all, we cannot meet it better. If not, let us enter the next scene with no sophistry in our mouths and no masks on our faces.'[163]
A conclusion of this kind could commend itself neither to the dogmatist who maintains the certainty of his theories, nor to the sceptic who regards them as both meaningless and useless. I have dwelt upon them so long because they seem to me to represent a substantially logical and coherent view which commended itself to a man of very powerful intellect, and which may be presumed to represent much that other people hold less distinctly. The creed of a strong man, expressed with absolute sincerity, is always as interesting as it is rare; and the presumption is that it contains truths which would require to be incorporated in a wider system. At any rate it represents the man; and I have therefore tried to expound it as clearly as I could. I may take it for granted in such references as I shall have to make in the following pages to my brother's judgment of the particular events in which he took part. Mill himself said, according to Professor Bain,[164] that Fitzjames 'did not know what he was arguing against, and was more likely to repel than to attract.' The last remark, as Professor Bain adds, was the truest. Mill died soon afterwards and made no reply, if he ever intended to reply. The book was sharply criticised from the positivist point of view by Mr. Harrison, and from Mill's point of view by Mr. John Morley in the 'Fortnightly Review' (June and August 1873). Fitzjames replied to them in a preface to a second edition in 1874. He complains of some misunderstandings; but on the whole it was a fair fight, which he did not regret and which left no ill-feeling.