147. This may be truly urged, but it does not therefore follow that the duty of befriending the slave is necessarily paramount to the duty of obeying the law which forbids his being befriended: and if it is possible for the latter duty to be paramount, it will follow, on the principle that there is no right to violate a duty, that under certain conditions the right of helping the slave may be cancelled by the duty of obeying the prohibitory law. It would be so if the violation of law in the interest of the slave were liable to result in general anarchy, not merely in the sense of the dissolution of this or that form of civil combination, but of the disappearance of the conditions under which any civil combination is possible; for such a destruction of the state would mean a general loss of freedom, a general substitution of force for mutual good-will in men's dealings with each other, that would outweigh the evil of any slavery under such limitations and regulations as an organised state imposes on it.
I. PRIVATE RIGHTS. THE RIGHT TO LIFE AND LIBERTY.
148. Returning from this digression, we resume our consideration of the nature and functions of the state. In order to understand this nature, we must understand the nature of those rights which do not come into being with the state, but arise out of social relations that may exist where a state is not; it being the first though not the only office of the state to maintain those rights. They depend for their existence, indeed, on society, a society of men who recognise each other as ἴσοι καὶ ὅμοιοι, as capable of a common well-being, but not on society's having assumed the form of a state. They may therefore be treated as claims of the individual without reference to the form of the society which concedes or recognises them, and on whose recognition, as we have seen, their nature as rights depends. Only it must be borne in mind that the form in which these claims are admitted and acted on by men in their dealings with each other varies with the form of society; that the actual form, e.g., in which the individual's right of property is admitted under a patriarchal régime is very different from that in which it is admitted in a state; and that though the principle of each right is throughout the same, it is a principle which only comes to be fully recognised and acted on when the state has not only been formed, but fully developed according to its idea.
149. The rights which may be treated as independent of the state in the sense explained are of course those which are commonly distinguished as private, in opposition to public rights. 'If rights be analysed, they will be found to consist of several kinds. For, first, they are such as regard a man's own person; secondly, such as regard his dominion over the external and sensible things by which he is surrounded; thirdly, such as regard his private relations as a member of a family; fourthly, such as regard his social state or condition as a member of the community: the first of which classes may be designated as personal rights; the second, as rights of property; the third, as rights in private relations; and the fourth, as public rights.' (Stephen, Comm., I, p. 136.)
150. An objection might fairly be made to distinguishing one class of rights as 'personal,' on the ground that all rights are so; not merely in the legal sense of 'person' according to which the proposition is a truism, since every right implies a person as its subject, but in the moral sense, since all rights depend on that capacity in the individual for being determined by a conception of well-being, as an object at once for himself and for others, which constitutes personality in the moral sense. By personal rights in the above classification are meant rights of life and liberty, i.e. of preserving one's body from the violence of other men, and of using it as an instrument only of one's own will; if of another's, still only through one's own. The reason why these come to be spoken of as 'personal' is probably the same with the reason why we talk of a man's 'person' in the sense simply of his body. They may, however, be reckoned in a special sense personal even by those who consider all rights personal, because the person's possession of a body and its exclusive determination by his own will is the condition of his exercising any other rights,—indeed, of all manifestation of personality. Prevent a man from possessing property (in the ordinary sense), and his personality may still remain. Prevent him (if it were possible) from using his body to express a will, and the will itself could not become a reality; he would not be really a person.
151. If there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly, to free life. No distinction can be made between the right to life and the right to liberty, for there can be no right to mere life, no right to life on the part of a being that has not also the right to use the life according to the motions of its own will. What is the foundation of this right? The answer is, capacity on the part of the subject for membership of a society, for determination of the will, and through it of the bodily organisation, by the conception of a well-being as common to self with others. This capacity is the foundation of the right, or the right potentially, which becomes actual through the recognition of the capacity by a society, and through the power which the society in consequence secures to the individual of acting according to the capacity. In principle, or intrinsically, or in respect of that which it has it in itself to become, the right is one that belongs to every man in virtue of his human nature (of the qualities that render him capable of any fellowship with any other men), and is a right as between him and any other men; because, as we have seen, the qualities which enable him to act as a member of any one society having the general well-being of its members for its object (as distinct from any special object requiring special talent for its accomplishment) form a capacity for membership of any other such society; but actually, or as recognised, it only gradually becomes a right of a man, as man, and against all men.
152. At first it is only a right of the man as a member of some one particular society, and a right as between him and the other members of that society, the society being naturally a family or tribe. Then, as several such societies come to recognise, in some limited way, a common well-being, and thus to associate on settled terms, it comes to be a right not merely between the members of any one of the societies, but between members of the several families or tribes in their dealings with each other, not, however, as men, but only as belonging to this or that particular family. This is the state of things in which, if one man is damaged or killed, compensation is made according to the terms of some customary law by the family or tribe of the offender to that of the man damaged or killed, the compensation varying according to the rank of the family. Upon this system, generally through some fusion of family demarcations and privileges, whether through pressure upward of a population hitherto inferior, or through a levelling effected by some external power, there supervenes one in which the relation between citizen and citizen, as such, is substituted for that between family and family as such. This substitution is one of the essential processes in the formation of the state. It is compatible, however, with the closest limitation of the privileges of citizenship, and implies no acknowledgment in man as man of the right to free life ascribed to the citizen as citizen. In the ancient world the companion of citizenship is everywhere slavery, and it was only actual citizenship, not any such capacity for becoming a citizen as might naturally be held to be implied in civil birth, that was considered to give a right to live; for the exposure of children was everywhere practised [1] (and with the approval of the philosophers), a practice in strong contrast with the principle of modern law that even a child in the womb has a right to live.
[1] Tacitus speaks of it as a peculiarity of the Jews and Germans that they did not allow the killing of younger children (Hist., V, 5; Germ. 19). Aristotle (Pol. 1335, b, 19) enjoins that μηδὲν πεπηρωμένον shall be brought up, but seems to condemn exposure, preferring that the required limit of population should be preserved by destruction of the embryo, on the principle that τὸ ὅσιον καὶ τὸ μὴ διωρισμένον τῇ αἰσθήσει καὶ τῷ ζῆν ἔσται Plato's rule is the same as regards the defective children and the procuring abortion, but he leaves it in the dark whether he meant any healthy children, actually born, to be put out of the way (Rep. 460 C. and 461 C.).
[Greek μηδὲν πεπηρωμένον (meden peperomenon) = no deformed [child], τὸ ὅσιον καὶ τὸ μὴ διωρισμένον τῇ αἰσθήσει καὶ τῷ ζῆν ἔσται (to hosion kai to me diorismenon te aisthesei kai to zen estai) = what may lawfully be done in such cases [of children not deformed] depends on the question of sensation and life Tr]
153. The influences commonly pointed out as instrumental in bringing about the recognition of rights in the man, as independent of particular citizenship, are these: (1) The adjudication by Roman praetors of questions at issue between citizens and those who were not so, which led to the formation of the system of 'equity,' independent of the old civil law and tending gradually to be substituted for it. The existence of such a system, however, presupposes the recognition of rights so far independent of citizenship in a particular state as to obtain between citizens of different states. (2) The doctrine of a 'law of nature' applicable to dealings of all men, popularised by the Stoics. (3) The Christian conception of the universal redemption of a brotherhood, of which all could become members through a mental act within the power of all.