ESSAY XI
PROJECT FOR A NEW THEORY OF CIVIL AND CRIMINAL LEGISLATION
When I was about fourteen (as long ago as the year 1792), in consequence of a dispute, one day after coming out of meeting, between my father and an old lady of the congregation, respecting the repeal of the Corporation and Test Acts and the limits of religious toleration, I set about forming in my head (the first time I ever attempted to think) the following system of political rights and general jurisprudence.
It was this circumstance that decided the fate of my future life; or rather, I would say it was from an original bias or craving to be satisfied of the reason of things, that I seized hold of this accidental opportunity to indulge in its uneasy and unconscious determination. Mr. Currie, my old tutor at Hackney, may still have the rough draught of this speculation, which I gave him with tears in my eyes, and which he good-naturedly accepted in lieu of the customary themes, and as a proof that I was no idler, but that my inability to produce a line on the ordinary school topics arose from my being involved in more difficult and abstruse matters. He must smile at the so oft-repeated charge against me of florid flippancy and tinsel. If from those briars I have since plucked roses, what labour has it not cost me? The Test and Corporation Acts were repealed the other day. How would my father have rejoiced if this had happened in his time, and in concert with his old friends Dr. Price, Dr. Priestly, and others! but now that there is no one to care about it, they give as a boon to indifference what they so long refused to justice, and thus ascribed by some to the liberality of the age! Spirit of contradiction! when wilt thou cease to rule over sublunary affairs, as the moon governs the tides? Not till the unexpected stroke of a comet throws up a new breed of men and animals from the bowels of the earth; nor then neither, since it is included in the very idea of all life, power, and motion. For and against are inseparable terms. But not to wander any farther from the point—
I began with trying to define what a right meant; and this I settled with myself was not simply that which is good or useful in itself, but that which is thought so by the individual, and which has the sanction of his will as such. 1. Because the determining what is good in itself is an endless question. 2. Because one person’s having a right to any good, and another being made the judge of it, leaves him without any security for its being exercised to his advantage, whereas self-love is a natural guarantee for our self-interest. 3. A thing being willed is the most absolute moral reason for its existence: that a thing is good in itself is no reason whatever why it should exist, till the will clothes it with a power to act as a motive; and there is certainly nothing to prevent this will from taking effect (no law or admitted plea above it) but another will opposed to it, and which forms a right on the same principle. A good is only so far a right, inasmuch as it virtually determines the will; for a right meant that which contains within itself, and as respects the bosom in which it is lodged, a cogent and unanswerable reason why it should exist. Suppose I have a violent aversion to one thing and as strong an attachment to something else, and that there is no other being in the world but myself, shall I not have a self-evident right, full title, liberty, to pursue the one and avoid the other? That is to say, in other words, there can be no authority to interpose between the strong natural tendency of the will and its desired effect, but the will of another. It may be replied that reason, that affection, may interpose between the will and the act; but there are motives that influence the conduct by first altering the will; and the point at issue is, that these being away, what other principle or lever is there always left to appeal to, before we come to blows? Now, such a principle is to be found in self-interest; and such a barrier against the violent will is erected by the limits which this principle necessarily sets to itself in the claims of different individuals. Thus, then, a right is not that which is right in itself, or best for the whole, or even for the individual, but that which is good in his own eyes, and according to his own will; and to which, among a number of equally selfish and self-willed beings, he can lay claim, allowing the same latitude and allowance to others. Political justice is that which assigns the limits of these individual rights in society, or it is the adjustment of force against force, of will against will, to prevent worse consequences. In the savage state there is nothing but an appeal to brute force, or the right of the strongest; Politics lays down a rule to curb and measure out the wills of individuals in equal portions; Morals has a higher standard still, and ought never to appeal to force in any case whatever. Hence I always found something wanting in Mr. Godwin’s Enquiry concerning Political Justice (which I read soon after with great avidity, and hoped, from its title and its vast reputation, to get entire satisfaction from it), for he makes no distinction between political justice, which implies an appeal to force, and moral justice, which implies only an appeal to reason. It is surely a distinct question, what you can persuade people to do by argument and fair discussion, and what you may lawfully compel them to do, when reason and remonstrance fail. But in Mr. Godwin’s system the ‘omnipotence of reason’ supersedes the use of law and government, merges the imperfection of the means in the grandeur of the end, and leaves but one class of ideas or motives, the highest and the least attainable possible. So promises and oaths are said to be of no more value than common breath; nor would they, if every word we uttered was infallible and oracular, as if delivered from a Tripod. But this is pragmatical, and putting an imaginary for a real state of things. Again, right and duties, according to Mr. Godwin, are reciprocal. I could not comprehend this without an arbitrary definition that took away the meaning. In my sense, a man might have a right, a discriminating power, to do something, which others could not deprive him of, without a manifest infraction of certain rules laid down for the peace and order of society, but which it might be his duty to waive upon good reasons shown; rights are seconded by force, duties are things of choice. This is the import of the words in common speech: why then pass over this distinction in a work confessedly rhetorical as well as logical, that is, which laid an equal stress on sound and sense? Right, therefore, has a personal or selfish reference, as it is founded on the law which determines a man’s actions in regard to his own being and well-being; and political justice is that which assigns the limits of these individual rights on their compatibility or incompatibility with each other in society. Right, in a word, is the duty which each man owes to himself; or it is that portion of the general good of which (as being principally interested) he is made the special judge, and which is put under his immediate keeping.
The next question I asked myself was, what is law and the real and necessary ground of civil government? The answer to this is found in the former statement. Law is something to abridge, or, more properly speaking, to ascertain, the bounds of the original right, and to coerce the will of individuals in the community. Whence, then, has the community such a right? It can only arise in self-defence, or from the necessity of maintaining the equal rights of every one, and of opposing force to force in case of any violent and unwarrantable infringement of them. Society consists of a given number of individuals; and the aggregate right of government is only the consequence of these inherent rights, balancing and neutralising one another. How those who deny natural rights get at any sort of right, divine or human, I am at a loss to discover; for whatever exists in combination, exists beforehand in an elementary state. The world is composed of atoms, and a machine cannot be made without materials. First, then, it follows that law or government is not the mere creature of a social compact, since each person has a certain right which he is bound to defend against another without asking that other’s leave, or else the right would always be at the mercy of whoever chose to invade it. There would be a right to do wrong, but none to resist it. Thus I have a natural right to defend my life against a murderer, without any mutual compact between us; hence society has an aggregate right of the same kind, and to make a law to that effect, forbidding and punishing murder. If there be no such immediate value and attachment to life felt by the individual, and a consequent justifiable determination to defend it, then the formal pretension of society to vindicate a right, which, according to this reasoning, has no existence in itself, must be founded on air, on a word, or a lawyer’s ipse dixit. Secondly, society, or government, as such, has no right to trench upon the liberty or rights of the individuals its members, except as these last are, as it were, forfeited by interfering with and destroying one another, like opposite mechanical forces or quantities in arithmetic. Put the basis that each man’s will is a sovereign law to itself: this can only hold in society as long as he does not meddle with others; but so long as he does not do this, the first principle retains its force, for there is no other principle to impeach or overrule it. The will of society is not a sufficient plea; since this is, or ought to be, made up of the wills or rights of the individuals composing it, which by the supposition remain entire, and consequently without power to act. The good of society is not a sufficient plea, for individuals are only bound (on compulsion) not to do it harm, or to be barely just: benevolence and virtue are voluntary qualities. For instance, if two persons are obliged to do all that is possible for the good of both, this must either be settled voluntarily between them, and then it is friendship, and not force; or if this is not the case, it is plain that one must be the slave, and lie at the caprice and mercy of the other: it will be one will forcibly regulating two bodies. But if each is left master of his own person and actions, with only the implied proviso of not encroaching on those of the other, then both may continue free and independent, and contented in their several spheres. One individual has no right to interfere with the employment of my muscular powers, or to put violence on my person, to force me to contribute to the most laudable undertaking if I do not approve of it, any more than I have to force him to assist me in the direct contrary: if one has not, ten have not, nor a million, any such arbitrary right over me. What one can be made to do for a million is very trifling: what a million may do by being left free in all that merely concerns themselves, and not subject to the perpetual caprice and insolence of authority, and pretext of the public good, is a very different calculation. By giving up the principle of political independence, it is not the million that will govern the one, but the one that will in time give law to the million. There are some things that cannot be free in natural society, and against which there is a natural law; for instance, no one can be allowed to knock out another’s brains or to fetter his limbs with impunity. And government is bound to prevent the same violations of liberty and justice. The question is, whether it would not be possible for a government to exist, and for a system of laws to be framed, that confined itself to the punishment of such offences, and left all the rest (except the suppression of force by force) optional or matter of mutual compact. What are a man’s natural rights? Those, the infringement of which cannot on any supposition go unpunished: by leaving all but cases of necessity to choice and reason, much would be perhaps gained, and nothing lost.
Corollary 1. It results from the foregoing statement, that there is nothing naturally to restrain or oppose the will of one man, but the will of another meeting it. Thus, in a desert island, it is evident that my will and rights would be absolute and unlimited, and I might say with Robinson Crusoe, ‘I am monarch of all I survey.’
Corollary 2. It is coming into society that circumscribes my will and rights, by establishing equal and mutual rights, instead of the original uncircumscribed ones. They are still ‘founded as the rock,’ though not so broad and general as the casing air, for the only thing that limits them is the solidity of another right, no better than my own, and, like stones in a building, or a mosaic pavement, each remains not the less firmly riveted to its place, though it cannot encroach upon the next to it. I do not belong to the state, nor am I a nonentity in it, but I am one part of it, and independent in it, for that very reason that every one in it is independent of me. Equality, instead of being destroyed by society, results from and is improved by it; for in politics, as in physics, the action and reaction are the same: the right of resistance on their part implies the right of self-defence on mine. In a theatre, each person has a right to his own seat, by the supposition that he has no right to intrude into any one else’s. They are convertible propositions. Away, then, with the notion that liberty and equality are inconsistent. But here is the artifice: by merging the rights and independence of the individual in the fictitious order of society, those rights become arbitrary, capricious, equivocal, removable at the pleasure of the state or ruling power; there is nothing substantial or durable implied in them: if each has no positive claim, naturally, those of all taken together can mount up to nothing; right and justice are mere blanks to be filled up with arbitrary will, and the people have thenceforward no defence against the government. On the other hand, suppose these rights to be not empty names or artificial arrangements, but original and inherent like solid atoms, then it is not in the power of government to annihilate one of them, whatever may be the confusion arising from their struggle for mastery, or before they can settle into order and harmony. Mr. Burke talks of the reflections and refractions of the rays of light as altering their primary essence and direction. But if there were no original rays of light, there could be neither refraction, nor reflections. Why, then, does he try by cloudy sophistry to blot the sun out of heaven? One body impinges against and impedes another in the fall, but it could not do this, but for the principle of gravity. The author of the Sublime and Beautiful would have a single atom outweigh the great globe itself; or all empty title, a bloated privilege, or a grievous wrong overturn the entire mass of truth and justice. The question between the author and his opponents appears to be simply this: whether politics, or the general good, is all affair of reason or imagination! and this seems decided by another consideration, viz. that Imagination is the judge of individual things, and Reason of generals. Hence the great importance of the principle of universal suffrage; for if the vote and choice of a single individual goes for nothing, so, by parity of reasoning, may that of all the rest of the community: but if the choice of every man in the community is held sacred, then what must be the weight and value of the whole.
Many persons object that by this means property is not represented, and so, to avoid that, they would have nothing but property represented, at the same time that they pretend that if the elective franchise were thrown open to the poor, they would be wholly at the command of the rich, to the prejudice and exclusion of the middle and independent classes of society. Property always has a natural influence and authority: it is only people without property that have no natural protection, and require every artificial and legal one. Those that have much, shall have more; and those that have little, shall have less. This proverb is no less true in public than in private life. The better orders (as they are called, and who, in virtue of this title, would assume a monopoly in the direction of state affairs) are merely and in plain English those who are better off than others; and as they get the wished-for monopoly into their hands, others will uniformly be worse off, and will sink lower and lower in the scale; so that it is essentially requisite to extend the elective franchise in order to counteract the excess of the great and increasing goodness of the better orders to themselves. I see no reason to suppose that in any case popular feeling (if free course were given to it) would bear down public opinion. Literature is at present pretty nearly on the footing of universal suffrage, yet the public defer sufficiently to the critics; and when no party bias interferes, and the government do not make a point of running a writer down, the verdict is tolerably fair and just. I do not say that the result might not be equally satisfactory, when literature was patronised more immediately by the great; but then lords and ladies had no interest in praising a bad piece and condemning a good one. If they could have laid a tax on the town for not going to it, they would have run a bad play forty nights together, or the whole year round, without scruple. As things stand, the worse the law, the better for the lawmakers: it takes everything from others to give to them. It is common to insist on universal suffrage and the ballot together. But if the first were allowed, the second would be unnecessary. The ballot is only useful as a screen from arbitrary power. There is nothing manly or independent to recommend it.
Corollary 3. If I was out at sea in a boat with a jure divino monarch, and he wanted to throw me overboard, I would not let him. No gentleman would ask such a thing, no freeman would submit to it. Has he, then, a right to dispose of the lives and liberties of thirty millions of men? Or have they more right than I have to resist his demands? They have thirty millions of times that right, if they had a particle of the same spirit that I have. It is not the individual, then, whom in this case I fear (to me ‘there’s no divinity doth hedge a king’), but thirty millions of his subjects that call me to account in his name, and who are of a most approved and indisputable loyalty, and who have both the right and power. The power rests with the multitude, but let them beware how the exercise of it turns against their own rights! It is not the idol but the worshippers that are to be dreaded, and who, by degrading one of their fellows, render themselves liable to be branded with the same indignities.
Corollary 4. No one can be born a slave; for my limbs are my own, and the power and the will to use them are anterior to all laws, and independent of the control of every other person. No one acquires a right over another but that other acquires some reciprocal right over him; therefore the relation of master and slave is a contradiction in political logic. Hence, also, it follows that combinations among labourers for the rise of wages are always just and lawful, as much as those among master manufacturers to keep them down. A man’s labour is his own, at least as much as another’s goods; and he may starve if he pleases, but he may refuse to work except on his own terms. The right of property is reducible to this simple principle, that one man has not a right to the produce of another’s labour, but each man has a right to the benefit of his own exertions and the use of his natural and inalienable powers, unless for a supposed equivalent and by mutual consent. Personal liberty and property therefore rest upon the same foundation. I am glad to see that Mr. Macculloch, in his Essay on Wages, admits the right of combination among journeymen and others. I laboured this point hard, and, I think, satisfactorily, a good while ago, in my Reply to Mr. Malthus. ‘Throw your bread upon the waters, and after many days you shall find it again.’