I have known, in Europe, a man, after a difference of opinion touching the ventilation of a railway carriage, to break a window with his elbow and to apply to his fellow-passenger an offensive epithet. The court made him pay a dollar and a half for breaking the window and six dollars for giving himself the pleasure of being insulting.
Which was the greater offense? Herodotus would expect this question to be answered in accordance with the prejudices of the person giving the answer.
158. THE RIGHTS AND DUTIES OF THE STATE.—The State evidently has rights over its citizens, and may enforce these rights through the infliction of punishment. It as evidently has duties. A given state may not be answerable to any actual given power. Our own State is in such a position at the present time—there is no other state strong enough to call it to account.
But this does not free it from duties. No state is anything more than a brute force, except as it incorporates, in some measure, the Rational Social Will. And states that fall far short, as judged by this standard, may overstep their rights and ignore their duties, whether they are dealing with individuals or with other states.
In punishing, the State should punish rationally. [Footnote: See chapter xxxii, Sec 148.] And it should not demand of its subjects what will degrade them as moral beings. "We all recognize," said a pure and candid soul, "that a rightful sovereign may command his subjects to do what is wrong, and that it is then their duty to disobey him." [Footnote: Sidgwick, Methods of Ethics, III, vi.]
But how discover what demands are just? It is the whole argument of this volume that no man should venture an opinion upon this subject without having come to some appreciation of what is meant by the Rational Social Will. Man, his instincts, the degree of his intelligence and self- control, the history of the development of human societies, cannot be ignored. It is the weakness of good men, endowed with a high degree of speculative intelligence, to construct Utopias, and to tabulate the "rights of man," or, as Bentham well expressed it, to make lists of "anarchical fallacies." [Footnote: See Works, Bowring's Edition, Volume II.] Thus, some may, with Plato and Aristotle, advocate infanticide. The Greek city-state was a crowded little affair, and in danger of over-population. Some may propose radical measures to increase the population. To France and Argentina, in our day, such an increase appears highly desirable. May any and every method be embraced which seems adapted to avert a given evil or to attain to a desired end? It is instructive to note that Francis Galton, the father of "eugenics," proposed to leave morals out of the question as "involving too many hopeless difficulties." [Footnote: Encyclopedia Britannica, 11th edition, article, "Sociology.">[ But do men live well who leave morals out of the question?
The man who falls back upon intuition alone, in his advocacy of the abolition of capital punishment, may be expected to maintain next that a state, in going to war, should stop short at the point where the lives of its citizens are put in jeopardy. Why kill a good man, when it is wrong to kill a bad one?
It must be admitted that the State and its representatives enjoy some rights and duties not accorded to individuals. The State may condemn men to death or to imprisonment; it may take over property; it may make itself a compulsory arbiter between individuals. On the other hand, its representatives are not always as free as are private persons. The individual, if he is a generous soul, may freely forego some of his advantages and may seek only a fair fight with an opponent. It is doubtful whether the duty the State owes to its citizens permits of chivalry. Certainly strong states do not hesitate to attack weak ones; nor do many hesitate to combine against one, on the score of fair play. And a private man may temper justice with mercy in ways forbidden to a judge.