We have now gone completely through the list of artificially created rights, without finding one that does not derive all its validity from connection with some pre-existing right. We have seen that among so-called rights none whatever are genuine by reason merely of any extrinsic sanction they may have received, but that all real rights either are such intrinsically, or are based upon, or embody within them, some right purely intrinsic. We have seen that there are two rights endued with this intrinsic character--viz., that of absolute control over one"s own self or person, and that of similar control over whatever else has by honest means come into one"s exclusive possession, or become due or owing to him exclusively; and, because these rights, wherever the conditions necessary for their exercise occur, of necessity exist, springing up at once and full grown, in the necessary absence of any antagonistic rights that could prevent their existing, I have not scrupled to call them "natural;" nor do I think that further apology can be needed for such application of the epithet. To maintain, moreover, that these natural rights const.i.tute the essence of all artificial rights, was simply equivalent to saying that no so-called right can be genuine unless requiring for its satisfaction no more than already actually belongs or is due to its claimant; while every right which does require no more must be genuine, because there can nowhere exist the right to withdraw or to withhold from any one anything that is exclusively his. These seeming truisms are indeed diametrically opposed to a theory which enters on its list of friends names no less ill.u.s.trious than those of Plato, Sir Thomas More, Bentham, and Mill.
Still, whoever, undeterred by so formidable an array of adverse authorities, is prepared to accept the description of rights of which they form part, will have no difficulty in framing a theory of justice perfectly conformable thereunto.
The justice of an action consists in its being one, abstinence from which is due to n.o.body. The justice of inaction--for just or unjust behaviour may be either active or pa.s.sive--consists in there being n.o.body to whom action, the reverse of the inaction, is due. "Justice, like many other moral attributes, may be best defined by its opposite,"
and all examples of injustice have this one point in common, that they withhold or withdraw from some person something belonging or due to him, or in some other way infringe his rights, and consequently wrong him.
Conversely, a point common to and characteristic of all just acts and omissions, is that they neither prevent anybody from having that which is due to him, nor in any other way infringe any one"s rights, and that they consequently do no one any wrong. It is not essential to the justice of conduct that anything due be thereby rendered. It suffices that nothing due be withheld. All conduct is just by which n.o.body is wronged.
It is further to be noted that all just conduct is of one of three kinds--that which justice peremptorily exacts; that which she merely permits, and may even be said barely to tolerate; and that which she approves of and applauds, without, however, presuming to enjoin it.
Conduct of this last sort is just in that it leaves nothing undone which justice requires, but it is also more than just in that it does more than justice requires. To speak of it as simply just, is therefore somewhat disparaging. It is just in the sense in which the less is comprehended by the greater. He who faithfully fulfils an engagement that has provided for his making a reasonable return for whatever advantage he might obtain under it, shows himself simply just in the matter, and nothing either more or less. He who, having driven a hard bargain, insists rigorously upon it, giving nothing less, and taking nothing more than had been mutually stipulated, is likewise strictly just, but is also shabby, and deserves to be told so plainly. He who, besides making full return, according to contract, for value received, does something more, at some inconvenience to himself, out of regard for another"s need, is not a whit more just than either of the other two, but he is generous into the bargain, and deserves thanks in proportion.
Rising out of these considerations are two others equally meriting attention.
In the first place, we may see additional cause for distrusting the testimony which etymology has been supposed to record in favour of "an origin of justice connected with the ordinances of law."[12] That "_justum_ is a form of _jussum_, that which has been ordered:" that "[Greek: dikaion] comes directly from [Greek: dike], a suit of law:"
that "_recht_, from which came right and righteous, is synonymous with law," is obvious enough; and it may not be out of place to add that in French the word _droit_ has, with almost savage irony, been selected as the technical name, not of law simply, but of legal procedure with all its crookedness.[13] Still it seems more in the ordinary course of things to explain this linguistic identification of law with justice, by supposing conformity to justice to have been the primitive element in the formation of the notion of law, than by supposing "conformity to law to have been the primitive element in the formation of the notion of justice." It seems more probable that certain things were commanded because they were deemed just, than that they were deemed just because they were commanded. Even the ancient Hebrews, who "believed their laws to be a direct emanation from the Supreme Being," although, if asked why it was wrong to kill or steal, they might very likely have replied, "Because theft and murder have been forbidden by G.o.d," would still have acknowledged that it would be wrong to kill or steal, even if there had been no divine prohibition of the practices. And when we recollect that among "other nations, and in particular the Greeks and Romans, who, knowing that their laws had been made by men, were not afraid to admit that men might make bad laws, ... the sentiment of justice came to be attached, not to all violations of law, but only to violations of such laws as ought to exist," what had previously appeared probable is converted into certainty. Principles of justice to which law ought to conform cannot but have been anterior to law, and cannot have originated in law. And certainty on this point grows still more certain, a.s.surance becomes doubly sure, when we reflect that, as was pointed out above, many things are just which, not only does not law command, but which justice barely tolerates, permitting them, indeed, to be done, but permitting them also to be reprobated.
Secondly, we may perceive that in mere justice there can be nothing praiseworthy. Justice is nothing more than abstinence from injustice, and no commendation can be due for not doing that the doing of which would deserve censure. Justice, if ent.i.tled to be ranked among the virtues at all, is at best only a negative virtue, as being the reverse of a vice. It is distinguished from all other moral qualities, as being the single and solitary one, compliance with whose behests is a duty which we owe to others. Of meekness, patience, temperance, fort.i.tude, courtesy, whatever display it may for any reason be our duty to make, precisely that display justice requires us to make. Whatever of any one of these qualities justice does not exact from us, we may, without wronging any one, omit. We must not, indeed, incapacitate ourselves by tippling for our proper work, nor offend the eyes or ears of decenter folk by reeling obstreperously through the streets; but, if we take the precaution of retiring during an interval of leisure to our privy chamber, our making beasts of ourselves then and there to our heart"s content, is our own concern, and n.o.body else"s. No doubt, in doing this we should be doing very wrong, but still there is no contradiction in saying that we should have perfect right to do it, inasmuch as we should thereby be wronging no one but ourselves. Of another cla.s.s of virtues--of all those which admit of being directly contrasted with justice, and which may for shortness" sake be without much inaccuracy comprehended under the general designation of generosity--it may, with literal truth, be said that the practice of them is no part of our duty to our neighbour. Provided we are careful to let every one have what, between him and us, are his bare dues, we may be selfish, mean, sordid to excess, without infringing any one else"s rights, without the smallest dereliction of our duty to others. True, ethical writers are in the habit of speaking of "duties of perfect and imperfect obligation,"
but of these "ill-chosen expressions," as Mr. Mill,[14] with abundant reason, styles them, the latter, more particularly, is of a slovenliness which ought to have prevented its being used by any "philosophic jurists." What some of these mean by it is stated to be "duties in which, though the act is obligatory, the particular occasions of performing it are left to our choice; as in the case of charity or beneficence, which we are indeed bound to practise, but not towards any defined person, or at any prescribed time." But, according to this explanation, there are duties of which performance may not only be indefinitely postponed, even until a morrow that may never come, but of which performance at one time will warrant non-performance of them subsequently; so that, for instance, he who has behaved charitably on past occasions, may be uncharitable afterwards. "In the more precise language" of other writers, we are told that while "duties of perfect obligation are those duties in virtue of which a correlative right resides in some person or persons, duties of imperfect obligation are those which do not give birth to any right." But, as where there is no right nothing can be due, it would seem from this that by duties of imperfect obligation are to be understood duties performance of which is not due. I hope to be pardoned for declining to accept these illusive distinctions as the boundaries which separate justice from the other components of morality. I neither understand how any obligation can be otherwise than perfect, nor do I recognise any duties whatever except those of justice. The main distinction between justice and all positive virtues I take to be that, whereas compliance with its behests is always imperative, compliance with theirs never is, but is always optional and discretionary. Of whatsoever is, for whatsoever reason, due, it is invariably justice, and justice alone, that demands payment or performance. Justice claims, and claims peremptorily, whatever is owing, but never puts forward the smallest pretension to anything that is not owing. But since whatever is _owing_ plainly _ought_ to be paid, and since justice never claims anything but what is owing, it is clear that there cannot be any merit in satisfying the claims of justice. Merit is possible only in actions which justice does not enjoin, but to which some other virtue exhorts.
From the main difference here pointed out, a minor collateral difference ramifies. Of whatever ought to be paid or done, payment or performance may be righteously enforced. Here I have the satisfaction of proceeding for a few steps side by side with Mr. Mill, although only, I am sorry to say, to part company again immediately. "It is a part," he says, "of the notion of duty in every one of its forms that a person may rightfully be compelled to fulfil it. Duty is a thing which may be _exacted_ from a person as one exacts a debt. Unless we think it may be exacted from him, we do not call it his duty."[15] Now, since justice never asks for anything but what is due, never makes a requisition compliance with which is not a duty, it follows that all those persons to whom its requisitions are addressed may be rightfully compelled to comply with them, whereas, since what every other virtue requires is always something not due, compliance with its requisitions is never a duty, and cannot, except unrighteously, be enforced. This--viz., the rightfulness of using compulsion in aid of justice, as contrasted with the wrongfulness of resorting to it in aid of generosity, rather than the rightfulness of punishing breaches of the one and not of the other, seems to me the "real turning-point of the distinction" between the two.
For gross disregard of generosity, and indeed of any other virtue, may rightfully be punished, justice fully sanctioning the punishment although indicating also the nature of the penalty to be inflicted in each case, and restricting it within certain limits. Whoever plays the dog in the manger in a manger of his own, or makes an exclusively selfish use of his wealth or other advantages, refusing to do good to his neighbour at however little sacrifice on his own part it might be done, is not thereby infringing anybody else"s rights, or thereby wronging any one else. He is only exercising his own undoubted rights.
Still he is exercising them in a manner deserving of severe reprobation, and which witnesses of his conduct may justly punish by testifying to him the scorn, disgust, or indignation he has excited. It is no more than just that he should have his deserts and receive the punishment which has become his due. But justice, although permitting him to be punished for acting ungenerously, does not sanction his being compelled to make a show of acting generously. If his conduct had been unjust instead of simply ungenerous, no punishment would be adequate that did not force him to repair the evil he had done, or to do the good he had left undone. But the most flagrant breach of generosity, neither keeping nor taking away anything to which any one has a right, does nothing for which reparation can be due. It consists simply in a man"s making an exclusively selfish use of what is exclusively his, and to make such use is one of the rights of property. Whoever exercises that odious right is justly punished by being shown how hateful we think him, but we must not, on pretence of justice, commit the injustice of depriving him of a right which is confessedly his.
It is not, then, by being rightfully liable to punishment that unjust differs from ungenerous conduct. The latter also ofttimes deserves and incurs punishment. But since there can be no merit in doing that the not doing of which would merit punishment, it may seem that, as in justice so likewise in generosity there cannot be anything positively meritorious. Neither in truth would there be if conduct were ent.i.tled to be styled generous simply as being the reverse of ungenerous. Generosity would then, like justice, be a virtue in no higher sense than that of not being a vice--a negative virtue if a virtue at all. But an action does not really deserve to be called generous unless what justice requires be exceeded by it in a degree more than sufficient to prevent the agent from deserving the imputation of meanness, nor even then unless the excess have been done from a purer motive than that of the hope of praise or other reward. An action is generous only in the proportion in which it involves self-sacrifice, voluntarily undergone for the benefit of others, without any view on the agent"s part to further compensation than that derivable from the consciousness of making other people happy. In such voluntary and disinterested self-sacrifice consists the merit which is one chief characteristic of generosity as of most positive virtue, distinguishing it from justice, in which there is never a surrender of anything which one would be warranted in keeping, but merely a rendering of what belongs or is due to others. All conduct, not immoral, admits, as already more than once intimated, of a tripart.i.te division, into that which may be rightfully enforced; that of which, though it be not due nor rightfully enforcible, neglect deserves to be and may justly be punished by reproaches; that which is neither due nor reasonably to be looked for, but which involves a voluntary surrender for the good of others of some good which one might without reproach keep for oneself. Of this last description is the only conduct in which there is any proper or positive virtue.
So much and such complex argumentation may not impossibly be deemed a good deal in excess of what is requisite to establish the conclusion to which it points, and which may be summed up in the following very simple propositions:--That, by a person"s rights being understood the privilege of having or doing whatever no other person has a right to prevent his having or doing, justice consists of abstinence from conduct that would interfere with that privilege; that justice, therefore, is not dependent on extrinsic sanction, but arises spontaneously from the nature of things, and may almost indeed be said to spring necessarily from the meaning of words; and that its sole merit is exemption from the demerit that would attach to the withholding or withdrawing from any person anything belonging or due to that person. With all possible confidence, however, in the innate vigour of these propositions, I cannot suppose that they do not require all possible advent.i.tious strengthening to be qualified to displace the doctrine to which they are opposed. I proceed, therefore, to test somewhat further the adequacy of the description of justice which they involve by confronting it with certain intricate problems, in presence of which the rival utilitarian definition will be found to be hopelessly at fault.
There are few subjects on which casuists have differed more widely than those of the legitimacy, and the proper measure of punishment. One thinks it unjust that anybody should be punished for the sake of example to others, or for any purpose except his own amelioration. A second replies that it is only for the sake of other people"s good that an offender ought to be punished; for that, as for his own good, he himself should be left to decide what that is, and he is pretty sure not to decide that it is punishment. A third p.r.o.nounces all punishment unjust, seeing that a man does not make himself criminal, but is made so by circ.u.mstances beyond his control--by his birth, parentage, education, and the temptations he meets with. Then, for the apportionment of punishment, some persons think there is no principle like that of the _lex talionis_--an eye for an eye, and a tooth for a tooth. Others that the penalty should be accurately proportioned to the immorality of the offence, by whatever standard that immorality be measured. Others, again, that punishment should be limited to the minimum necessary to deter from crime, quite irrespectively of the heinousness of the particular crime punished. Of the first three of these opinions, Mr.
Mill observes that "they are all extremely plausible, and that so long as the question is argued as one of justice simply, without going down to the principles that lie under justice, and are the source of its authority, he is unable to see how any one of the reasoners can be refuted. For every one of them builds upon rules of justice confessedly true--each is triumphant so long as he is not obliged to take into consideration any other maxims of justice than those he has selected, but that as soon as their several maxims are brought face to face, each disputant seems to have as much to say for himself as the others. No one can carry out his own notion of justice without trampling upon another equally binding."[16] This view of the matter, however, can scarcely be regarded as satisfactory. If utilitarian notions of justice cannot be carried out without trampling each other down, they plainly should not be suffered to go at large, but should be relegated forthwith to the limbo of oblivion. But right cannot really be opposed to right; justice cannot really be inconsistent with itself: it never can be unjust to do what is just. Anti-utilitarian justice tolerates no such intestine disorder. The sole ground on which she sanctions punishment is the indispensableness of punishment for the reparation of injury. Whoever has suffered wrong has been subjected to invasion of some right, personal or proprietary, and is ent.i.tled to amends for the outrage; while the aggressor from whom the amends are due, ought to render them because he owes them, and because he ought, may, if necessary, be compelled, to render them. By the breach of right which he has committed, he has forfeited his own corresponding right, which may now be equitably set aside to whatever extent may be requisite for reparation of the evil he has done, one essential part of such reparation being adequate security against repet.i.tion of the wrong. So far as may be necessary for this purpose, punishment may equitably go, but no further. Genuine justice does not permit penal laws of human enactment to take into account the abstract turpitude of crime. That she reserves for divine cognisance, recollecting that "Vengeance is mine, I will repay," saith the Lord. Nor does she permit the smallest aggravation of punishment for the sake either of the offender"s own mental improvement, or to discourage others from evil doing; neither, on the other hand, does she recognise any claim to abatement on the plea of an offender not having been able to help acting as he did. She would not, indeed, punish with death or with stripes an outrage committed by a lunatic or an idiot, partly because an outrage may be really less offensive for being committed unwittingly, inasmuch as it does not, at any rate, add insult to injury, and also because the corporal chastis.e.m.e.nt of a lunatic or an idiot could afford no reparation to the wounded feelings of a healthy mind. But so far as even an idiot or a lunatic was capable of making good the evil he had done by rendering what had in consequence become due, Anti-utilitarianism would require him equally with an erring saint or sage to make it, and equally, too, would subject him to whatever restraint might be deemed not more than sufficient to prevent his doing the same evil again. And of course she does not treat an offender of ordinary intelligence with indulgence which she would not show even to a lunatic, but exacts inexorably full reparation for what he has done, requiring him commonly to pay in kind so far as he can, and to make up with his person for any deficiency.
Within the limits thus marked out she is well content that, with the one object which alone justifies punishment, other secondary objects with which justice has no concern, should be combined. She is well content that the same penal measures as are called for in order to compensate the injured party, should also subserve the reform of the criminal, and serve as general deterrents from crime. But she protests against the notion that these, or any other objects, can ever excuse the infringement of any ordinance of justice, or of any of even a criminal"s rights which the criminal has not forfeited by crime. Justice, in short, in her penal, as in all her other arrangements, has but to adhere closely to the anti-utilitarian principles of rendering what is due, and of taking nothing that is not due, in order to steer clear of all the difficulties by which the ablest and most accomplished Utilitarians confess themselves staggered.
A second greatly vexed question is, "whether, in a co-operative industrial a.s.sociation, it is just or not that talent or skill should give a t.i.tle to superior remuneration? On the one side it is argued that all who do the best they can deserve equally well; ... that superior abilities have already advantages more than enough in the admiration they excite, the personal influence they command, and the internal satisfaction attending them; and that society is bound in justice rather to make compensation to the less favoured for this unmerited inequality of advantages, than to aggravate it. On the contrary side, that society, receiving more from the more efficient labourer, owes him a larger return; that a larger share of the joint result being actually his work, not to allow his claim to it is a sort of robbery; that if he is only to receive as much as others he can only be required to produce as much."[17] "Between these appeals to conflicting principles of justice,"
Mr. Mill considers it impossible to decide. "Justice," he says, "has in this case two sides to it, which it is impossible to bring into harmony, and the two disputants have chosen opposite sides; the one looks to what it is just that the individual should receive, the other to what it is just that the community should give. Each from his own point of view is unanswerable, and any choice between them, on grounds of justice, must be perfectly arbitrary. Social utility alone can decide the preference."[18] The form of justice depicted with this Ja.n.u.s-like aspect can scarcely be the utilitarian, since, whoever, on utilitarian grounds, selects one of its sides, must perforce, on the same grounds, reject the other. Still, it is spoken of as genuine justice, wherefore that there is a justice independent of utility, would seem, after all, to be admitted by Utilitarians themselves. It is for them, however, to deal with the dilemma which their own ingenuity has thus devised. My only concern with the two-headed monster they have imagined is to protest against its being mistaken for the one sole species of justice which Anti-utilitarianism recognises, and which never presents any such double-faced appearance. In the case before us anti-utilitarian justice would decide with her accustomed ease between the two appellants. What she would look to would simply be that each co-operator should have his due. But how much soever she might declare an inferior workman to deserve for doing his best, she certainly would not allow his deserts to extend to partic.i.p.ation in the fruits of the toil of those of his fellows who had done better than he. His having produced as much as he was able could not render due to him a share in the larger produce of others of superior capacity. Very possibly the superior workmen might agree that all should partic.i.p.ate equally in the aggregate results of their joint labour. If so, well and good. For so liberal a concession they would deserve credit, and thanks would be due to them from those in whose favour it was made; but this of itself would be a conclusive proof, if any were wanting, that the concession was an act, not of justice, but of generosity, not of debt, but of grace.
Again, what discordance is there not as to the most equitable repart.i.tion of taxation! That all should be taxed in equal proportion to their pecuniary means; that taxation should be a graduated percentage on income, rising as income rose; that all, whether rich or poor, should be taxed alike; that all should pay equal capitation, but unequal property-tax--these are some out of many divergencies of opinion, and "from these confusions" there is, Mr. Mill considers, "no other mode of extrication than the utilitarian."[19] But if there were really no other, there would, in fact, be none at all. For opinions differ scarcely less as to the utility, than as to the justice of each specified mode of taxation. There are quite as many persons who think it expedient as who think it equitable that people should be taxed either equally, or according to any of the suggested schemes of inequality. All the help that Utilitarianism here affords is, as usual, to leave every one to judge for himself which plan is the most advisable, and then to p.r.o.nounce that to be the only moral plan. Anti-utilitarianism offers guidance of a very different sort. It wastes no time in seeking for an escape from confusion, for it allows no confusion to exist. It spurns equally the idea of different persons being required to pay different prices for equal quant.i.ties of the same thing, merely because some of them can afford to pay more, and that of their being all required to pay the same price for different quant.i.ties, merely because all are equally in need of the quant.i.ties they respectively obtain. It recognises only an imperfect a.n.a.logy between a club or a mess to which no one need subscribe unless he likes, and a national community to whose funds every resident within its territory has no choice but to contribute; and while quite content that members of the one should be a.s.sessed at any rates to which they have spontaneously consented, it protests against the imposition on members of the other of burdens disproportioned to their several abilities. It denies that the shilling of a man who has but one in the world is of the same value to him because it is his all, as is to another an estate bringing him in 100,000_l._ a year, seeing that, if the former had his pocket picked, he might presently beg, borrow, or earn a second coin, whereas if the latter were dispossessed of his estate he might live to the age of Methusaleh without acquiring its equivalent. It perceives that a rich man, by receiving public protection for his property as well as his person, is relieved from an expense in maintaining private watchmen, which a poor man, with nothing but his carca.s.s to defend, would have as little occasion as ability to incur; and it concludes that more being thus in effect given to the rich, more is due from him in return, and more, consequently, may be rightfully exacted.
We come, now, to a case that may well give to both Utilitarians and Anti-utilitarians pause--with this difference, however, that whereas it brings the former to an everlasting standstill, the latter may, after a while, go on complacently meditative, at least, if not rejoicing.
There are certain situations in which justice loses its authority.
"Thus, to save a life, it may be allowable ... to steal or take by force the necessary food or medicine, or kidnap and compel to officiate the only qualified medical pract.i.tioner."[20] Wherefore, since to steal or to kidnap is essentially wrong, it may sometimes be allowable to do wrong. Mr. Mill"s explanation of the paradox is, that "there are particular cases in which some other social duty is so important as to overrule any one of the general maxims of justice; but that in such cases we usually say, not that justice must give way to some other moral principle, but that what is just in ordinary cases is, by reason of that other principle, not just in the particular case."[21] I submit, however, that there is no real occasion to resort to any such "useful accommodation of language," in order to be "saved from the necessity of admitting that there may be laudable injustice." Let us never shrink from looking error in the face, for fear that, after she has slunk away abashed, some insoluble mystery may remain behind. It is better, at any rate, to be puzzled than deceived. There can be no doubt about theft being essentially unjust, and no skill in the arrangement of words can convert injustice into justice, or prevent injustice from being wrong.
But when, as occasionally happens, the only choice open to us is between two immoral courses, it is morally inc.u.mbent on us to select the less immoral of the two. The wrong we decide upon does not, however, itself become smaller because it prevents a larger. A sworn bravo, who had taken in advance the wages of a.s.sa.s.sination, would sin less by breaking than by keeping faith with his employer; but, in either case, would sin.
Abstinence from murder would not absolve him from the guilt of perjury.
If, unless a loaf were stolen, a life would be lost, Anti-utilitarianism might pardon, but would scarcely applaud the theft. At all events it would not, like the rival doctrine in a similar strait, be reduced to double on itself, declaring that wrong had become right and black white, that the Ethiopian had changed his skin and the leopard his spots. It would still insist as positively as ever that to steal another man"s bread cannot be just, however benevolent the purpose for which it is stolen.
One more ill.u.s.tration and I have done. Whoever believes as I do in the indefeasible sanct.i.ty of honestly acquired _moveable_ property, is logically bound to hold equally sacred the rights of bequest and inheritance. With whatever is exclusively your own, you may surely do anything you please except harm; nor need even harm be excepted if it be done to yourself alone. If, indeed, you go the length of playing ducks and drakes with gold pieces, or of lighting cigars with bank-notes, you are likely enough to be stopped and placed under restraint as a lunatic, but it is clear that this will be done solely because you are presumed not to understand what you are doing, and not from any question as to your right to do it if you do understand, for there are plenty of things far more objectionable in themselves, only not implying a want of sanity, which you will be left perfectly at liberty to do. If you choose, in imitation of Cleopatra, to spoil your fish-sauce by mixing powdered pearls with it, or, in imitation of a certain Peruvian viceroy, to shoe your carriage horses with silver, no one will dream of interfering with you; any more than of preventing courtesans and other fine ladies from befouling their nether limbs by sweeping the dusty road with flounces of Brussels lace; or of preventing members of the Cobden Club from gorging themselves annually, at a cost of five guineas per paunch, in honour of the prince of practical economists. But property, which, however great the good it is capable of doing, you are at liberty to employ solely for your own hurt, you are, of course, at liberty to destroy, thereby preventing it, at least, from doing any more harm. The lesser right of abuse is plainly comprehended in the larger. And of that which is so absolutely your own that you may, if you please, wantonly waste or destroy it, you may, of course, transfer the ownership, thereby conveying to another person all your rights in it, and rendering it as unjust to interfere with the new owner"s disposal of the property, as it would previously have been to interfere with yours. Moreover, since the gift is a purely voluntary act, you may, if you please, without impairing its validity, arrange that it shall begin to take effect from some future date instead of immediately; so that, by naming some date subsequent to your own decease, you will be converting the gift into an equally valid bequest. This, I submit, is decisive as to the iniquity of any legal limitation of testamentary power. The right of bequest is comprehended within and rests upon the same basis as the right of possession, so that, unless it would be just to pa.s.s a law depriving all persons of any property possessed by them in excess of a given amount, it would not be just to deprive them by law of the power of bequeathing the surplus.
The rights of inheritance obviously coincide precisely with those of bequest. Just so much as the testator parts with the legatee obtains.
When the bequest is unconditional, the new owner whom it creates steps into the precise position which the previous owner has vacated. Often, however, a legacy is qualified by conditions, and, among others, by this, that the property bequeathed shall be held in trust for certain purposes. Now, if these purposes be socially noxious, society need not hesitate to set aside the will that has provided for them. Quite justifiably, society might annul the testamentary endowment of a hospital for fleas and lice, such as Bishop Heber, in his Indian tour, found existing at Baroach and at Surat, because those particular insect pests could scarcely be retained within the walls of their infirmary.
Perhaps, too, society might be justified in similarly preventing the endowment of a hospital for superannuated dogs and cats; whether it would or not depending mainly on the awkward question whether such inferior animals have any rights inconsistent with human interests. Be this as it may, however, where human interests alone are concerned, the rights of conditional heirship present no ethical difficulty. When it is for purposes socially innocuous and affecting human beings alone that property is left in trust, it cannot be equitably diverted from those purposes without the consent of all the individuals whom the testamentary arrangements were intended to affect. It matters not how whimsical or preposterous the object enjoined may be; not even though it be a periodical dinner, cooked after the manner of the ancients, like the nauseous one at which Peregrine Pickle a.s.sisted; or instruction in alchemy or in Hindoo astronomy, or in the art of walking on one"s head.
Not until there remain no persons at once ent.i.tled under the will, and also wishing to partake of the banquet or the instruction, can one or the other be equitably discontinued? As long as there are any such persons left, to stop, without their consent and without adequately compensating them, arrangements, rights in which have been vested in them by bequest, would be as palpable a violation of justice as to pick their pockets of sums equivalent to their several interests, real or supposed, in the arrangements.
If scrupulous adherence to the principle thus laid down would heavily shackle the activity and seriously impair the immediate usefulness of Mr. Forster and his coadjutors in the Endowed School Commission, I am exceedingly sorry, but not in the least shaken in my conviction that the principle ought to be rigidly adhered to. If parochial or other communities are too stupid or too selfish to consent that school endowments under their charge shall be applied to purposes of more extensive utility than the founders contemplated, every effort should be made to persuade or to shame them into consenting, but without their consent the thing should on no account be done. On this point Utilitarianism and Anti-utilitarianism would, I apprehend, give identical counsel, the former condemning as impolitic what the latter denounced as unjust. The cause of national education would be ill served by any course calculated to discourage its future endowment by private testators, and nothing would be more likely to have that effect than arbitrary interference with the endowments of former testators.
The courteous reader may now be temporarily released, with fitting acknowledgment of his exemplary patience. It would be cruel to detain him with a recapitulation, without which he may readily trace for himself, in what has gone before, the outlines of a consistent body of anti-utilitarian ethics. In these there is little new, little that has not been antic.i.p.ated by many an old-fashioned saw and antiquated apothegm--such as, _Fiat just.i.tia ruat caelum_, "Be just before you are generous," and, I would fain add, "Honesty is the best policy"--save that to that Utilitarianism may fairly lay equal claim. My modest ambition throughout this essay has been to vindicate some of the most momentous of primeval truths from the slights to which philosophy--not modern, indeed, but modernised and refurbished--is continually subjecting them, and I will not deny that I have modest a.s.surance enough to believe that I have at least partially succeeded. I think I have shown that there are such things as abstract right and wrong, resting not on fancied intuition, but on a solidly rational basis, and supporting in turn abstract justice, whose guidance, whoever accepts it, will find to be as sure and as adequate as any that una.s.sisted reason is capable of supplying. Anti-utilitarian justice never tries to look half-a-dozen different ways at once, never points at the same time in opposite directions, never issues contradictory mandates, never halts between two opinions. Her votaries, like other mortals, may often be in doubt as to accomplished facts; but, provided these be clear, their course is in general equally clear; there seldom remains aught to embarra.s.s them. If they sincerely desire to ascertain what is due from them, they can seldom err, except on the right side, and they will never dream of disputing that whatever is due from them it must be their duty to do, without respect of consequences. These they will leave to the supreme controller of events, if they believe in one, and will leave to take their chance, if they do not so believe, feeling all the more certain in the latter case that to control events cannot, at any rate, be within their power. They never stop to calculate how much good may perhaps ensue if evil be done. Simple arithmetic, apart from faith, satisfies them that to add wrong to wrong cannot possibly augment the sum total of right. The prime article of their creed is the absolute obligation of paying debts--a piece of unworldly wisdom more than ever now to Jews a stumbling-block, and to Greeks foolishness, but not the less to all, whether Jews or Gentiles, who will accept it, a light to show through the mazes of life, a path so plainly marked that the foolishest of wayfaring men cannot greatly err therein.
FOOTNOTES:
[1] The distinction here drawn is not merely verbal. The greatest happiness of the greatest number may mean either the largest total of happiness in which the largest possible number of those concerned can partic.i.p.ate, or a still larger total, which, if some of the possible partic.i.p.ants were excluded, would be divisible among the remainder. The largest aggregate of happiness attainable by any or by all concerned, means the largest sum total absolutely, without reference to the number of partic.i.p.ants. Writers on Utilitarianism seem to have sometimes the first, sometimes the second of these totals in view, but more frequently the second than the first.
[2] I do not form a separate cla.s.s of pleasures of the affections, because these seem to me not to be elementary, but to be always compounded of two or more of the other five kinds.
[3] "On Labour," p. 135.
[4] "Fortnightly Review," June, 1868.
[5] See the No. for June, 1869.
[6] "On Labour," p. 93.
[7] "Fortnightly Review" for June, 1869, p. 683.
[8] See "Fortnightly Review" for June, 1869, pp. 687-8.
[9] "Utilitarianism," by J. S. Mill, pp. 64-8.
[10] "Fortnightly Review" for June, 1869, pp. 684-5.
[11] "Utilitarianism," p. 267.
[12] "Utilitarianism," pp. 69, 70.
[13] "Les legistes leur fournirent au besoin l"appui du droit contre le droit meme."--De Tocqueville, "L"Ancien Regime," p. 567.
[14] "Utilitarianism," pp. 72, 73.
[15] "Utilitarianism," p. 71.
[16] "Utilitarianism," pp. 81, 82.
[17] "Utilitarianism," pp. 84, 85.
[18] Ibid. p. 85.
[19] "Utilitarianism," pp. 86, 87.
[20] "Utilitarianism," p. 94.
[21] Ibid. pp. 94, 95.