Part 14

FIRST, AS TO THE RIGHTS OF PERSONS. My intention is to show that the right of society to make laws to coerce the will of others, is founded on the necessity of repelling the wanton encroachment of that will on their rights; that is, strictly on the right of self-defence or resistance to aggression. Society comes forward and says, 'Let us alone, and we will let you alone, otherwise we must see which is strongest'; its object is not to patronise or advise individuals for their good, and against their will, but to protect itself: meddling with others forcibly on any other plea or for any other purpose is impertinence. But equal rights destroy one another; nor can there be a right to impossible or impracticable things. Let A, B, C, D, etc., be different component parts of any society, each claiming to be the centre and master of a certain sphere of activity and self-determination: as long as each keeps within his own line of demarcation there is no harm done, nor any penalty incurred--it is only the superfluous and overbearing will of particular persons that must be restrained or lopped off by the axe of the law. Let A be the culprit: B, C, D, etc., or the rest of the community, are plaintiffs against A, and wish to prevent his taking any unfair or unwarranted advantage over them. They set up no pretence to dictate or domineer over him, but merely to hinder his dictating to and domineering over them; and in this, having both might and right on their side, they have no difficulty in putting it in execution. Every man's independence and discretionary power over what peculiarly and exclusively concerns himself, is his _castle_ (whether round, square, or, according to Mr. Owen's new map of improvements, in the form of a parallelogram). As long as he keeps within this, he is safe--society has no hold of him: it is when he quits it to attack his neighbours that they resort to reprisals, and make short work of the interloper. It is, however, time to endeavour to point out in what this natural division of right, and separate advantage consists. In the first place, A, B, C, D have the common and natural rights of persons, in so far that none of these has a right to offer violence to, or cause bodily pain or injury to any of the others. Sophists laugh at natural rights: they might as well deny that we have natural persons; for while the last distinction holds true and good by the constitution of things, certain consequences must and will follow from it--'while this machine is to us Hamlet,' etc. For instance, I should like to know whether Mr. Burke, with his _Sublime and Beautiful_ fancies, would deny that each person has a particular body and senses belonging to him, so that he feels a peculiar and natural interest in whatever affects these more than another can, and whether such a peculiar and paramount interest does not imply a direct and unavoidable right in maintaining this circle of individuality inviolate. To argue otherwise is to assert that indifference, or that which does not feel either the good or the ill, is as capable a judge and zealous a discriminator of right and wrong as that which does. The right, then, is coeval and co-extended with the interest, not a product of convention, but inseparable from the order of the universe; the doctrine itself is natural and solid; it is the contrary fallacy that is made of air and words. Mr. Burke, in such a question, was like a man out at sea in a haze, and could never tell the difference between land and clouds. If another break my arm by violence, this will not certainly give him additional health or strength; if he stun me by a blow or inflict torture on my limbs, it is I who feel the pain, and not he; and it is hard if I, who am the sufferer, am not allowed to be the judge. That another should pretend to deprive me of it, or pretend to judge for me, and set up his will against mine, in what concerns this portion of my existence--where I have all at stake and he nothing--is not merely injustice, but impudence. The circle of personal security and right, then, is not an imaginary and arbitrary line fixed by law and the will of the prince, or the scaly finger of Mr. Hobbes's _Leviathan_, but is real and inherent in the nature of things, and itself the foundation of law and justice. 'Hands off is fair play'--according to the old adage. One, therefore, has not a right to lay violent hands on another, or to infringe on the sphere of his personal identity; one must not run foul of another, or he is liable to be repelled and punished for the offence. If you meet an Englishman suddenly in the street, he will run up against you sooner than get out of your way, which last he thinks a compromise of his dignity and a relinquishment of his purpose, though he expects you to get out of his. A Frenchman in the same circumstances will come up close to you, and try to walk over you, as if there was no one in his way; but if you take no notice of him, he will step on one side, and make you a low bow. The one is a fellow of stubborn will, the other a _petit-maître_. An Englishman at a play mounts upon a bench, and refuses to get down at the request of another, who threatens to call him to account the next day. 'Yes,' is the answer of the first, 'if your master will let you!' His abuse of liberty, he thinks, is justified by the other's want of it. All an Englishman's ideas are modifications of his will; which shows, in one way, that right is founded on will, since the English are at once the freest and most wilful of all people. If you meet another on the ridge of a precipice, are you to throw each other down? Certainly not. You are to pass as well as you can. 'Give and take,' is the rule of natural right, where the right is not all on one side and cannot be claimed entire. Equal weights and scales produce a balance, as much as where the scales are empty: so it does not follow (as our votaries of absolute power would insinuate) that one man's right is nothing because another's is something. But suppose there is not time to pass, and one or other must perish, in the case just mentioned, then each must do the best for himself that he can, and the instinct of self-preservation prevails over everything else. In the streets of London, the passengers take the right hand of one another and the wall alternately; he who should not conform to this rule would be guilty of a breach of the peace. But if a house were falling, or a mad ox driven furiously by, the rule would be, of course, suspended, because the case would be out of the ordinary. Yet I think I can conceive, and have even known, persons capable of carrying the point of gallantry in political right to such a pitch as to refuse to take a precedence which did not belong to them in the most perilous circumstances, just as a soldier may waive a right to quit his post, and takes his turn in battle. The actual collision or case of personal assault and battery, is, then, clearly prohibited, inasmuch as each person's body is clearly defined: but how if A use other means of annoyance against B, such as a sword or poison, or resort to what causes other painful sensations besides tangible ones, for instance, certain disagreeable sounds and smells? Or, if these are included as a violation of personal rights, then how draw the line between them and the employing certain offensive words and gestures or uttering opinions which I disapprove? This is a puzzler for the dogmatic school; but they solve the whole difficulty by an assumption of _utility_, which is as much as to tell a person that the way to any place to which he asks a direction is 'to follow his nose.' We want to know by given marks and rules what is best and useful; and they assure us very wisely, that this is infallibly and clearly determined by what is best and useful. Let us try something else. It seems no less necessary to erect certain little _fortalices_, with palisades and outworks about them, for RIGHT to establish and maintain itself in, than as landmarks to guide us across the wide waste of UTILITY. If a person runs a sword through me, or administers poison, or procures it to be administered, the effect, the pain, disease or death is the same, and I have the same right to prevent it, on the principle that I am the sufferer; that the injury is offered to me, and he is no gainer by it, except for mere malice or caprice, and I therefore remain master and judge of my own remedy, as in the former case; the principle and definition of right being to secure to each individual the determination and protection of that portion of sensation in which he has the greatest, if not a sole interest, and, as it were, identity with it. Again, as to what are called _nuisances_, to wit offensive smells, sounds, etc., it is more difficult to determine, on the ground that _one man's meat is another man's poison_. I remember a case occurred in the neighbourhood where I was, and at the time I was trying my best at this question, which puzzled me a good deal. A rector of a little town in Shropshire, who was at variance with all his parishioners, had conceived a particular spite to a lawyer who lived next door to him, and as a means of annoying him, used to get together all sorts of rubbish, weeds, and unsavoury materials, and set them on fire, so that the smoke should blow over into his neighbour's garden; whenever the wind set in that direction, he said, as a signal to his gardener, 'It's a fine Wicksteed wind to-day'; and the operation commenced. Was this an action of assault and battery, or not? I think it was, for this reason, that the offence was unequivocal, and that the only motive for the proceeding was the giving this offence. The assailant would not like to be served so himself. Mr. Bentham would say, the malice of the motive was a set-off to the injury. I shall leave that _prima philosophia_ consideration out of the question. A man who knocks out another's brains with a bludgeon may say it pleases him to do so; but will it please him to have the compliment returned? If he still persists, in spite of this punishment, there is no preventing him; but if not, then it is a proof that he thinks the pleasure less than the pain to himself, and consequently to another in the scales of justice. The _lex talionis_ is an excellent test. Suppose a third person (the physician of the place) had said, 'It is a fine Egerton wind to-day,' our rector would have been non-plussed; for he would have found that, as he suffered all the hardship, he had the right to complain of and to resist an action of another, the consequences of which affected principally himself. Now mark: if he had himself had any advantage to derive from the action, which he could not obtain in any other way, then he would feel that his neighbour also had the same plea and right to follow his own course (still this might be a doubtful point); but in the other case it would be sheer malice and wanton interference; that is, not the exercise of a right, but the invasion of another's comfort and independence. Has a person, then, a right to play on the horn or on a flute, on the same staircase? I say, yes; because it is for his own improvement and pleasure, and not to annoy another; and because, accordingly, every one in his own case would wish to reserve this or a similar privilege to himself. I do not think a person has a right to beat a drum under one's window, because this is altogether disagreeable, and if there is an extraordinary motive for it, then it is fit that the person should be put to some little inconvenience in removing his sphere of liberty of action to a reasonable distance. A tallow-chandler's shop or a steam-engine is a nuisance in a town, and ought to be removed into the suburbs; but they are to be tolerated where they are least inconvenient, because they are necessary somewhere, and there is no remedying the inconvenience. The right to protest against and to prohibit them rests with the suffering party; but because this point of the greatest interest is less clear in some cases than in others, it does not follow that there is no right or principle of justice in the case. 3. As to matters of contempt and the expression of opinion, I think these do not fall under the head of force, and are not, on that ground, subjects of coercion and law. For example, if a person inflicts a sensation upon me by material means, whether tangible or otherwise, I cannot help that sensation; I am so far the slave of that other, and have no means of resisting him but by force, which I would define to be material agency. But if another proposes an opinion to me, I am not bound to be of this opinion; my judgment and will is left free, and therefore I have no right to resort to force to recover a liberty which I have not lost. If I do this to prevent that other from pressing that opinion, it is I who invade his liberty, without warrant, because without necessity. It may be urged that material agency, or force, is used in the adoption of sounds or letters of the alphabet, which I cannot help seeing or hearing. But the injury is not here, but in the moral and artificial inference, which I am at liberty to admit or reject, according to the evidence. There is no force but argument in the case, and it is reason, not the will of another, that gives the law. Further, the opinion expressed, generally concerns not one individual, but the general interest; and of that my approbation or disapprobation is not a commensurate or the sole judge. I am judge of my own interests, because it is my affair, and no one's else; but by the same rule, I am not judge, nor have I a _veto_ on that which appeals to all the world, merely because I have a prejudice or fancy against it. But suppose another expresses by signs or words a contempt for me? _Answer._ I do not know that he is bound to have a respect for me. Opinion is free; for if I wish him to have that respect, then he must be left free to judge for himself, and consequently to arrive at and to express the contrary opinion, or otherwise the verdict and testimony I aim at could not be obtained; just as players must consent to be hissed if they expect to be applauded. Opinion cannot be forced, for it is not grounded on force, but on evidence and reason, and therefore these last are the proper instruments to control that opinion, and to make it favourable to what we wish, or hostile to what we disapprove. In what relates to action, the will of another is force, or the determining power: in what relates to opinion, the mere will or _ipse dixit_ of another is of no avail but as it gains over other opinions to its side, and therefore neither needs nor admits of force as a counteracting means to be used against it. But in the case of calumny or indecency: 1. I would say that it is the suppression of truth that gives falsehood its worst edge. What transpires (however maliciously or secretly) in spite of the law, is taken for gospel, and as it is impossible to prevent calumny, so it is impossible to counteract it on the present system, or while every attempt to answer it is attributed to the people's not daring to speak the truth. If any single fact or accident peeps out, the whole character, having this legal screen before it, is supposed to be of a piece; and the world, defrauded of the means of coming to their own conclusion, naturally infer the worst. Hence the saying, that reputation once gone never returns. If, however, we grant the general licence or liberty of the press, in a scheme where publicity is the great object, it seems a manifest _contre-sens_ that the author should be the only thing screened or kept a secret: either, therefore, an anonymous libeller would be heard with contempt, or if he signed his name thus --, or thus -- --, it would be equivalent to being branded publicly as a calumniator, or marked with the T. F. (_travail forcé_) or the broad R. (rogue) on his back. These are thought sufficient punishments, and yet they rest on opinion without stripes or labour. As to indecency, in proportion as it is flagrant is the shock and resentment against it; and as vanity is the source of indecency, so the universal discountenance and shame is its most effectual antidote. If it is public, it produces immediate reprisals from public opinion which no brow can stand; and if secret, it had better be left so. No one can then say it is obtruded on him; and if he will go in search of it, it seems odd he should call upon the law to frustrate the object of his pursuit. Further, at the worst, society has its remedy in its own hands whenever its moral sense is outraged, that is, it may send to Coventry, or excommunicate like the church of old; for though it may have no right to prosecute, it is not bound to protect or patronise, unless by voluntary consent of all parties concerned. Secondly, as to rights of action, or personal liberty. These have no limit but the rights of persons or property aforesaid, or to be hereafter named. They are the channels in which the others run without injury and without impediment, as a river within its banks. Every one has a right to use his natural powers in the way most agreeable to himself, and which he deems most conducive to his own advantage, provided he does not interfere with the corresponding rights and liberties of others. He has no right to coerce them by a decision of his individual will, and as long as he abstains from this he has no right to be coerced by an expression of the aggregate will, that is, by law. The law is the emanation of the aggregate will, and this will receives its warrant to act only from the forcible pressure from without, and its indispensable resistance to it. Let us see how this will operate to the pruning and curtailment of law. The rage of legislation is the first vice of society; it ends by limiting it to as few things as possible. 1. There can, according to the principle here imperfectly sketched, be no laws for the enforcement of morals; because morals have to do with the will and affections, and the law only puts a restraint on these. Every one is politically constituted the judge of what is best for himself; it is only when he encroaches on others that he can be called to account. He has no right to say to others, You shall do as I do: how then should they have a right to say to him, You shall do as we do? Mere numbers do not convey the right, for the law addresses not one, but the whole community. For example, there cannot rightly be a law to set a man in the stocks for getting drunk. It injures his health, you say. That is his concern, and not mine. But it is detrimental to his affairs: if so, he suffers most by it. But it is ruinous to his wife and family: he is their natural and legal guardian. But they are thrown upon the parish: the parish need not take the burden upon itself, unless it chooses or has agreed to do so. If a man is not kind to or fond of his wife I see no law to make him. If he beats her, or threatens her life, she as clearly has a right to call in the aid of a constable or justice of peace. I do not see, in like manner, how there can be law against gambling (against cheating there may), nor against usury. A man gives twenty, forty, a hundred per cent. with his eyes open, but would he do it if strong necessity did not impel him? Certainly no man would give double if he could get the same advantage for half. There are circumstances in which a rope to save me from drowning, or a draught of water, would be worth all I have. In like manner, lotteries are fair things; for the loss is inconsiderable, and the advantage may be incalculable. I do not believe the poor put into them, but the reduced rich, the _shabby-genteel_. Players were formerly prohibited as a nuisance, and fortune-tellers still are liable to the Vagrant Act, which the parson of the parish duly enforces, in his zeal to prevent cheating and imposture, while he himself has his two livings, and carries off a tenth of the produce of the soil. Rape is an offence clearly punishable by law; but I would not say that simple incontinence is so. I will give one more example, which, though quaint, may explain the distinction I aim at. A man may commit suicide if he pleases, without being responsible to any one. He may quit the world as he would quit the country where he was born. But if any person were to fling himself from the gallery into the pit of a playhouse, so as to endanger the lives of others, if he did not succeed in killing himself, he would render himself liable to punishment for the attempt, if it were to be supposed that a person so desperately situated would care about consequences. Duelling is lawful on the same principle, where every precaution is taken to show that the act is voluntary and fair on both sides. I might give other instances, but these will suffice. 2. There should be a perfect toleration in matters of religion. In what relates to the salvation of a man's soul, he is infinitely more concerned than I can be; and to pretend to dictate to him in this particular is an infinite piece of impertinence and presumption. But if a man has no religion at all? That does not hinder me from having any. If he stood at the church door and would not let me enter, I should have a right to push him aside; but if he lets me pass by without interruption, I have no right to turn back and drag him in after me. He might as well force me to have no religion as I force him to have one, or burn me at a stake for believing what he does not. Opinion, 'like the wild goose, flies unclaimed of any man': heaven is like 'the marble air, accessible to all'; and therefore there is no occasion to trip up one another's heels on the road, or to erect a turnpike gate to collect large sums from the passengers. How have I a right to make another pay for the saving of my soul, or to assist me in damning his? There should be no secular interference in sacred things; no laws to suppress or establish any church or sect in religion, no religious persecutions, tests, or disqualifications; the different sects should be left to inveigh and hate each other as much as they please; but without the love of exclusive domination and spiritual power there would be little temptation to bigotry and intolerance.