[213] This question, how far the conception of Freedom involves unlimited right to limit Freedom by free contract, will meet us again in the next chapter, when we consider the general duty of obedience to Law.
[214] It has often been urged as a justification for expropriating savages from the land of new colonies that tribes of hunters have really no moral right to property in the soil over which they hunt.
[215] This is the argument used by optimistic political economists such as Bastiat.
[216] The further consideration of Political Freedom, with which we shall be occupied in the next chapter, will afford additional illustrations of the difficulties involved in the notion.
[217] If the view given in the text be sound, it illustrates very strikingly the difference between natural instincts and moral intuitions. For the impulse to requite a service is, on its emotional side, quite different from that which prompts us to claim the fruits of our labour, or “a fair day’s wages for a fair day’s work.” Still, our apprehension of the duty of Gratitude seems capable of being subsumed under the more general intuition ‘that desert ought to be requited.’
[218] It certainly requires a considerable strain to bring the ‘right of First Discovery’ under the notion of ‘right to the produce of one’s labour.’ Hence Locke and others have found it necessary to suppose, as the ultimate justification of the former right, ‘a tacit consent’ of mankind in general that all things previously unappropriated shall belong to the first appropriator. But this must be admitted to be a rather desperate device of ethico-political construction: on account of the fatal facility with which it may be used to justify almost any arbitrariness in positive law.
[219] The reader will find an interesting illustration of the perplexity of Common Sense on this point in Mr. O. W. Holmes, Junior’s, book on The Common Law, chap. iii., where the author gives a penetrating discussion of the struggle, in the development of the doctrine of torts in English Law, between two opposing views: (1) that “the risk of a man’s conduct is thrown upon him as the result of some moral short-coming,” and (2) that “a man acts at his peril always, and wholly irrespective of the state of his consciousness upon the matter.” The former is the view that has in the main prevailed in English Law; and this seems to me certainly in harmony with the Common Sense of mankind, so far as legal liability is concerned; but I do not think that the case is equally clear as regards moral obligation.
[220] Cf. post, pp. [292-3]. It may be added that there is often a further difficulty in ascertaining the amount of compensation due: for this frequently involves a comparison of things essentially disparate, and there are some kinds of harm which it seems impossible to compensate.
[221] In the earlier stage of moral development, referred to in the preceding paragraph, retribution inflicted on the wrongdoer was regarded as the normal mode of reparation to the person injured. But this view is contrary to the moral Common Sense of Christian Societies.
[222] I think the term “merit” often blends the two notions, as when we speak of “promotion by merit.” By moralists, however, “merit” is generally used as exactly equivalent to what I have called “desert.”