Chapter 13

RIGHTS AND OBLIGATIONS.

Of the things that are fitting and right, there are some which, though they may be described in general terms, cannot be defined and limited with entire accuracy; there are others which are *so obvious and manifest, or so easily ascertained*, that, in precise form and measure, *they may be claimed* by those to whom they are due, *and required* of those from whom they are due. These last are rights, and the duties which result from them are *obligations*. Thus it is right that a poor man should be relieved; and it is my duty, so far as I can, to relieve the poor. But this or that individual poor man cannot claim that it is my duty rather than that of my neighbor to minister to his needs, or that I am bound to give him what I might otherwise give to his equally needy neighbor. He has no specific right to any portion of my money or goods; I have no specific obligation to give him anything. But if a man has lent me money, he has a right to as much of my money or goods as will repay him with interest; and I am under an obligation thus to repay him. Again, it is right that in the public highway there should be, among those who make it their thoroughfare, mutual accommodation, courtesy, and kindness; but no one man can prescribe the precise distance within which he shall not be approached, or the precise amount of pressure which may be allowable to his abutters in a crowd. Nor yet can the individual citizen occupy the street in such a way as to obstruct those who make use of it. He has no exclusive rights in the street; nor are others under obligation to yield to him any peculiar privileges. But he has a right to exclude whom he will from his own garden, and to occupy it in whatever way may please him best; and his fellow-citizens are under obligation to keep their feet from his alleys and flower-beds, their hands from his fruit, and to abstain from all acts that may annoy or injure him in the use and enjoyment of his garden.

*Rights*—with the corresponding obligations—might be divided into *natural* and *legal*. But the division is nominal rather than real; for, in the first place, there are no natural rights, capable of being defined, which are not in civilized countries under the sanction and protection of law; secondly, it is an open question whether some generally recognized rights—as, for instance, that of property—exist independently of law; and, thirdly, it may be maintained, on the other hand, that law is powerless to create, competent only to declare rights.

One chief agency of law as to rights is exercised in limiting *natural rights*. Considered simply in his relation to outward nature, a man has a manifest right to whatever he can make tributary to his enjoyment or well-being. But his fellow-men have the same right. If, then, there be a restricted supply of what he and they may claim by equal right, the alternative is, on the one hand, usurpation or perpetual strife, or, on the other, an adjustment by which each shall yield a part of what he might claim were there no fellow-claimant, and thus each shall have his proportion of what belongs equally to all. To make this adjustment equitably is the province of law. The problem which it attempts to solve is, How may each individual citizen secure the fullest amount of liberty and of material well-being, consistent with the admitted or established rights of others? Under republican institutions, this problem presents itself in the simplest form, society being in principle an equal partnership, in which no one man can claim a larger dividend than another. But where birth or condition confers certain peculiar rights, the problem must be so modified, that the rights conceded to the common citizens shall not interfere with these inherited or vested rights. In either case, the rights of each member of the community are bounded only by the conterminous rights of others. Obligations correspond to rights. Each member of the community is under obligation, always to refrain from encroachment on the rights of others, and in many cases to aid in securing or defending those rights, he on like occasions and in similar ways having his own rights protected by others.

We will consider separately *rights appertaining to the person, to property, and to reputation*.

1. *Rights appertaining to the person.* The most essential of these is the right to life, on which of course all else that can be enjoyed is contingent. This right is invaded, not only by direct violence, but by whatever may impair or endanger health. The corresponding obligation of the individual member of society is to refrain from all acts, employments, or recreations that may imperil life or health, and of society collectively, to furnish a police-force adequate to the protection of its members, to forbid and punish all crimes of violence, to enact and maintain proper sanitary regulations, and to suppress such nuisances as may be not only annoying, but harmful.

But the citizen is entitled to protection, only so long as he refrains from acts by which he puts other lives in peril. If he assault another man with a deadly weapon, and his own life be taken in the encounter, the slayer has violated no right, nay, so far as moral considerations are concerned, he is not even the slayer; for the man who wrongfully puts himself in a position in which another life can be protected only at the peril of his own, if his own be forfeited, has virtually committed suicide. Nor is the case materially altered, if a man in performing an unlawful act puts himself in a position in which he may be reasonably supposed to intend violence. Thus, while both law and conscience would condemn me if I killed a thief in broad daylight, in order to protect my property,—if a burglar enter my house by night with no intention of violence, and yet in the surprise and darkness of the hour I have reason to suppose my life and the lives of my family in danger from him, the law regards my slaying of such a person as justifiable homicide; and my conscience would acquit me in defending the right to life appertaining to my family and myself, against one whose intention or willingness to commit violence was to be reasonably inferred from his own unlawful act.

Society, through the agency of law, in some cases and directions limits the right of the individual citizen to life, and this *to the contingent benefit of each,—to the absolute benefit of all*. So long as men are less than perfect in character and condition, there must of necessity be some sacrifice of life; but this sacrifice may be reduced to its _minimum_ by judicious legislation. Now, if without such legislation the percentage of deaths would be numerically much higher than under well-framed laws, the lives sacrificed under these laws are simply cases in which the right of the individual is made to yield to the paramount rights of the community. Thus, there can be no doubt, that contagious disease of the most malignant type could, in many cases, be more successfully treated at the homes of the patients than in public hospitals. But if by the removal of patients to hospitals the number of cases may be greatly diminished, and the contagion speedily arrested, this removal is the right of the community,—yet not under circumstances of needless privation and hardship, not without the best appliances of comfort, care, and skill which money can procure; for the public can be justified in the exercise of such a right, only by the extension of the most generous offices of humanity to those who are imperilled for the public good.

It is only on similar grounds that the *death-penalty for murder* can be justified. The life of the very worst of men should be sacrificed only for the preservation of life; for if it be unsafe to leave them at liberty, they may be kept under restraint and duress, without being wholly cut off from the means of enjoyment and improvement. The primeval custom of the earlier nations required the nearest kinsman of the murdered man to kill the murderer with his own hand, and in so doing to shed his blood, which was believed to have a mysterious efficacy in expiating the crime. This form of revenge was greatly checked and restricted by the institutions of Moses; it fell into disuse among the Jews, with their growth in civilization; and was certainly included in the entire repeal of the law of retaliation by Jesus Christ.(5)

But if with the dangerous classes of men the dread of capital punishment is a dissuasive from crimes of violence, so that the number of murders is less, and the lives of peaceable citizens are safer, than were murder liable to some milder penalty, then it is the undoubted right of the public to confiscate the murderer’s right to life, and thus to sacrifice the smaller number of comparatively worthless lives for the security of the larger number of lives that may be valuable to the community. Or again if, by the profligate use of the pardoning power, the murderer sentenced to perpetual imprisonment will probably be let loose upon society unreformed, and with passions which may lead to the repetition of his crime, it is immeasurably more fitting that he be killed, than that he be preserved to do farther mischief. Yet again, if there be in the death-penalty for murder an educational force,—if by means of it each new generation is trained in the greater reverence for human life, and the greater detestation and horror of the crime by which it is destroyed,—then is capital punishment to be retained as a means of preserving an incalculably greater number of lives than it sacrifices. On these grounds, though in opposition to early and strong conviction, we are constrained to express the belief that, in our time and country, the capital punishment of the murderer is needed for the security of the public, and is justified as a life-saving measure.

In *enforced military service*, also, legal authority exposes the lives of a portion of the citizens for the security of the greater number. It is an unquestionable truth that, in its moral affinities, war is generated by evil, is allied to numberless forms of evil, and has a countless progeny of evil. But it is equally true that war will recur at not unfrequent intervals, so long as the moral evils from which it springs remain unreformed. Such are the complications of international affairs, that the most righteous and pacific policy may not always shield a people from hostile aggressions; while insurrection, sedition, and civil war may result not only from governmental oppression, but from the most salutary measures of reform and progress. In such cases, self-defence on the part of the nation or the government assailed, is a right and an obligation, due even in the interest of human life, and still more, in behalf of interests more precious than life. Moreover, even in a war of unprovoked aggression, the aggressive nation does not forfeit the right of self-defence by the unprincipled ambition of its rulers, and, war once declared, its vigorous pursuit may be the only mode of averting disaster or ruin. Thus war, though always involving atrocious wrong on the part of its promoters and abettors, becomes to the nations involved in it a necessity for which they are compelled to provide.

This provision may, in some cases, be made by voluntary enlistment; but in most civilized countries, it has been found necessary to fill and recruit the army by conscription, thus forcibly endangering the lives of a portion of the citizens, in order to avert from the soil and the homes of the people at large the worse calamities of invasion, devastation, and conquest. So far as this is necessary, it is undoubtedly right, and the lives thus sacrificed are justly due to the safety and well-being of the whole people. But in making this admission, we would say, without abatement or qualification, that war is essentially inhuman, barbarous, and opposed to and by the principles and spirit of Christianity, and that should the world ever be thoroughly Christianized, the ages when war was possible, will be looked back upon with the same horror with which we now regard cannibalism.

Associated with the right to life, and essential to its full enjoyment, is the *right to liberty*. This includes the right to direct one’s own employments and recreations, to divide and use his time as may seem to him good, to go where he pleases, to bestow his vote or his influence in public affairs as he thinks best, and to express his own opinions orally, in writing, or through the press, without hindrance or molestation. These several rights belong equally to all; but as they cannot be exercised in full without mutual interference and annoyance, the common sense of mankind, uttering itself through law, permits each individual to enjoy them only so far as he can consistently with the freedom, comfort, and well-being of his fellow-citizens.

*Slavery* is so nearly extirpated from Christendom, that it is superfluous to enter into the controversy, which a few years ago no treatise on Moral Philosophy could have evaded. It was defended only by patent sophistry, and its advocates argued from the fact to the right, inventing the latter to sustain the former.

*Personal liberty is legally and rightfully restricted* in the case of minors, on the ground of their *immature* judgment and discretion, of their natural state of dependence on parents, and of their usual abode under the parental roof. The age of mature discretion varies very widely, not only in different races, but among different individuals of the same race, as does also the period of emancipation from the controlling influence of parents, and of an independent and self-sustaining condition in life. But, as it is impossible for government to institute special inquiries in the case of each individual, and as, were this possible, there would be indefinite room for favoritism and invidious distinctions, there is an intrinsic fitness in fixing an average age at which parental or _quasi_-parental tutelage shall cease, and after which the man shall have full and sole responsibility for his own acts. It is perfectly obvious that the liberty of the insane and feeble-minded ought to be restricted so far as is necessary for their own safety and for that of others. There is, also, in most communities, a provision by which notorious spendthrifts may be put under guardianship, and thus restrained in what might be claimed as their rightful disposal of their own property. This may be justified on the ground that, by persistent wastefulness, they may throw upon the public the charge of their own support and that of their families.

*Imprisonment* is, on the part of society, a measure, not of revenge, but of self-defence. The design of this mode of punishment is, first, to prevent the speedy repetition of the crime on the part of the person punished; secondly, so to work, either upon his moral nature by confinement, labor, and instruction, or at the worst, on his fears, by the dread of repeated and longer restraint, that he may abstain from crime in future; and lastly, to deter those who might otherwise be tempted to crime from exposing themselves to its penal consequences. As regards the prisoner, he has justly forfeited the right to liberty by employing it in aggression on the rights of others.

As regards acts not in themselves wrong, the freedom of the individual is rightfully restrained, when it would interfere with the health, comfort, or lawful pursuits of his neighbors. Thus no man has the right, either legal or moral, to establish, in an inhabited vicinage, a trade or manufacture which confessedly poisons the air or the water in his neighborhood; nor has one a moral right (even if there are technical difficulties in the way of declaring his calling a nuisance), to annoy his neighbors by an avocation grossly offensive or intolerably noisy. It is on this ground alone that legislation with reference to the Lord’s day can be justified. Christians have no right to impose upon Jews, Pagans, or infidels, entire cessation of labor, business, or recreation on Sunday, and the attempt at coercive measures of this kind can only react to the damage of the cause in which they are instituted. But if the majority of the people believe it their duty to observe the first day of the week as a day of rest and devotion, they have a right to be protected in its observance by the suppression of such kinds, degrees, and displays of labor and recreation as would essentially interfere with their employment of the day for its sacred uses.

2. *The right to property* is an inevitable corollary from the right to liberty; for this implies freedom to labor at one’s will, and to what purpose can a man labor, unless he can make the fruit of his labor his own? All property, except land, has been created by labor. Except where slavery is legalized, it is admitted that the laborer owns the value he creates. If it be an article made or produced wholly by himself, it is his to keep, to use, to give, or to sell. If his labor be bestowed on materials not his own, or if he be one of a body of workmen, he is entitled to a fair equivalent for the labor he contributes.

*Property in land*, no doubt, originated in labor. A man was deemed the proprietor of so much ground as he tilled. In a sparse population there could have been no danger of mutual interference; and in every country, governments must have been instituted before there was a sufficiently close occupation of the soil to occasion collisions and conflicts among the occupants. The governments of the early ages, in general, confirmed the titles founded in productive occupancy, and treated the unoccupied land as the property of the state, either to be held in common, to be ceded to individual owners in reward of loyalty or services, or to be sold on the public account.

It is manifest that the *security of property is essential to civilization and progress*. Men would labor only for the needs of the day, if they could not retain and enjoy the fruits of their labor; nor would they be at pains to invent or actualize industrial improvements of any kind, if they had no permanent interest in the results of such improvements. Then, too, if there were no protection for property, there could be no accumulation of capital, and without capital there could be no enterprise, no combined industries, no expenditure in faith of a remote, yet certain profit. Nor yet can the ends of a progressive civilization be answered by a community of goods and gains. Wherever this experiment has been tried, it has been attended by a decline of industrial energy and capacity; and where there has not been absolute failure, there have been apathy, stupidity, and a decreasing standard of intelligence. In fine, there is in man’s bodily and mental powers a certain _vis inertiæ_, which can be efficiently aroused only by the stimulus of personal interest in the results of industry, ingenuity, and prudence.

The right of property implies *the right of the owner, while he lives*, to hold, enjoy, or dispose of his possessions in such way as may please him. But his ownership necessarily ceases at death; and what was his becomes *rightfully the property of the public*. Yet in all civilized countries, it has been deemed fitting that the owner should have the liberty—with certain restrictions—of dictating the disposal of his property after his death, and also that, unless alienated by his will (and in some countries his will notwithstanding), his property should pass to his family or his nearest kindred. It is believed that it would discourage industry and enfeeble enterprise were their earnings to be treated as public property on the death of the owner; and that, on the other hand, men are most surely trained to and preserved in habits of diligence and thrift, either by the power of directing the disposal of their property after death, or by the certainty that they can thereby benefit those whom they hold in the dearest regard. Laws with reference to wills and to the succession of estates are not, then, limitations of the rights of private property, but a directory as to what is deemed the best mode of disposing of such property as from time to time accrues to the public.

*The law limits the right of property* by appropriating to public uses such portions of it as are needed for the maintenance, convenience, and well-being of the body politic. This is done, in the first place, by taxation, which—in order to be just—must be equitable in its mode of assessment, and not excessive in amount. As to the modes of assessment, it is obvious that a system which lightens the burden upon the rich, and thus presses the more heavily on the poor (as would be the case were a revenue raised on the necessaries of life, while luxuries were left free), cannot be justified. On the other hand, it may be maintained that the rate of taxation might fairly increase with the amount of property; for a very large proportion of the machinery of government is designed for the protection of property, and the more property an individual has, the less capable is he of protecting his various interests by his own personal care, and the more is he in need of well-devised and faithfully executed laws. Taxation excessive in amount is simply legalized theft. Sinecures, supernumerary offices, needless and costly formalities in the transaction of public business, journeys and festivities at the public charge, buildings designed for ostentation rather than for use, have been so long tolerated in the municipal, state, and national administrations, that they may seem inseparable from our system of government; but they imply gross dishonesty on the part of large numbers of our public servants, and guilty complicity in it on the part of many more. Under a system of direct taxation, assessments can be more equitably made, and their expenditure will be more carefully watched, than in the case of indirect taxation; while the latter method is more likely to find favor with those who hold or seek public office, as encouraging a larger freedom of expenditure, and supporting a larger number of needless functionaries at the public cost.

The law, also, authorizes *the appropriation of specific portions of property to public uses*, as for streets, roads, aqueducts, and public grounds, and even in aid of private enterprises in which the community has a beneficial interest, as of canals, bridges, and railways. This is necessary, and therefore right. It is obvious that, but for this, the most essential facilities and improvements might be prevented, or burdened with unreasonable costs, by the obstinacy or cupidity of individuals. The conditions under which such use of private property is justified are, that the improvement proposed be for the general good, that a fair compensation be given for the property taken, and that as to both these points, in case of a difference of opinion, the ultimate appeal shall be to an impartial tribunal or arbitration.

3. *The right to reputation.* Every man has a right to the reputation he deserves, and is under obligation to respect that right in every other man. This obligation is violated, not only by the fabrication of slander, but equally by its repetition, unless the person who repeats it knows it to be true, and also by silence and seeming acquiescence in an injurious report, if one knows or believes it to be false. But has a man a right to a better reputation than he deserves? Certainly not, in a moral point of view; and if men could be generally known to be what they are, few would fail to become what they would wish to seem. Yet the law admits the truth of a slanderous charge in justification of the slanderer, only when it can be shown that the knowledge of the truth is for the public benefit. There are good reasons for this attitude of the law, without reference to any supposed rights of the justly accused party. There is, in many instances, room for a reasonable doubt as to evil reports that seem authentic, and in many more instances there may be extenuating circumstances which form a part of the case, though almost never, of the report. Then, too, the family and kindred of the person defamed may incur, through true, yet useless reports to his discredit, shame, annoyance, and damage, which they do not merit. Evil reports, also, even if true, disturb the peace of the community, and often provoke violent retaliation. The wanton circulation of them, therefore, if a luxury to him who gives them currency, is a luxury indulged at the expense of the public, and he ought to be held liable for all that it may cost. Finally, and above all, the slanderer becomes a nuisance to the community, not only by his reports of real or imagined wrong and evil, but by the degradation of his own character, which can hardly remain above the level of his social intercourse.

By the law, defamation and libel are, very justly, liable both to *criminal prosecution*, as offences against the public, and to *action for damages* by civil process, on the obvious ground that the injury of a man’s character tends to impair his success in business, his pecuniary credit, and his comfortable enjoyment of his property.