ESSAY I

PROJECT FOR A NEW THEORY OF CIVIL AND CRIMINAL LEGISLATION.

WHEN I was about fourteen, in consequence of a dispute one day after 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.

I began with trying to define what a right was; 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 highest 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 above it) but another will opposed to it, and which forms a right on the same principle. A good is only a right, because it generally determines the will; for a right is 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 another, and that there is no other being in the world but myself, shall I not have a self-evident right, title, liberty, to pursue the one and avoid the other? That is to say in other words, there can be nothing to interpose between the strong natural tendency of the will and its desired effect, but the will of another. 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 ne

cessary ground of civil government? Law is something to abridge the original right and to coerce the will of individuals in the community. Whence then has the community this 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 infringement of them. Society consists of any given number of individuals; and the aggregate right of government is only the consequence of these inherent rights, balancing and neutralizing one another. First then, it follows that law or government is not the creature of a social compact, for 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 wished to invade it. Thus I have a natural right to defend my life against a murderer, without any mutual compact between us: society has an aggregate right of the same kind, and to make a law to that effect, forbidding and punishing murder. Secondly, society, or government as such, has no right to trench upon the liberty or rights of the individuals its members, except as these rights interfere with and inevitably destroy one another, like opposite mechanical forces or quantities in arithmetic. Put the basis that each man's will is a sovereign law to himself: this can only hold in society, as long as he does not meddle with others; but as long as he does not do this, the first principle retains its force, for there is no other principle to overule 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. 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 bound 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 that 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 remain free and independent in their several spheres. One individual has no right to interfere with my employment of my muscular powers, or to offer violence to 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 can one be made to do for a million is very trifling: what a million may do by being left free in all that merely concerns them, and not subject to the perpetual caprice and insolence of authority, and pretext of the public good, is a very different calculation. There are 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 similar 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) voluntary or matter of mutual compact. What are a man's natural rights? Those, the infringement of which cannot go

unpunished: by leaving all but cases of necessity to choice and reason, much would be perhaps gained, and nothing lost,

COROLLARY 1. It follows from the foregoing statement, that there is nothing 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 right would be absolute and unlimited, and I might say with Robinson Crusoe, I am monarch of all I survey."

COROLLARY 2. It is society that circumscribes my will or rights, by establishing equal and mutual rights. I do not belong to the state nor am I a nonentity in it, but I am some thing and independent in it, for that very reason that no one in it belongs to me. Equality, instead of being destroyed by society, results from and is proved by it; for in morals as in physics, the action and reaction are equal. In a row of the pit each person has a right to his own place by the supposition that he has no right to encroach on any one's else. They are convertible propositions. Away then with the notion that liberty and equality are inconsistent. But here is the artifice : by merging the rights of the individual in the factitious order of society, those rights become arbitrary, capricious, removable at the pleasure of the state or ruling power; there is nothing substantial or sacred left in them: if one has no right naturally, 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. Hence the great utility of universal suffrage; for if the vote and choice of a single individual goes for nothing, so may that of all the rest of the community, by parity of reasoning: 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 object that by this means property is not represented, and they would have nothing but property represented. Property always has a natural influence and authority: it is only persons without property that have no natural protection, and require every artificial and legal one.

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 compliance, 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 no right 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, but thirty millions of his subjects that call me to account in his name, and who have both the right and power. They have the power, but let them beware how the exercise of it turns against their own rights! It is not the idol but the worshippers who are to be feared, and who by degrading one of their own rank, make themselves liable to be branded with the same disqualifications and penalties.

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 every other person. No one acquires a right over another but that other acquires the same right over him; therefore the relation of master and slave is a contradiction in political logic. Hence combinations among laborers for the rise of wages are always just and lawful, as much as those among master manufacturers to keep them down. A man's labor is his own as much as another's good; and he may starve if he pleases, but he may refuse to work except on his own terms. The right of prop

erty is founded on this, that one man has not a right to the produce of another's labor, but each man has a right to the benefit of his own exertions and the use of his natural and inalienable powers, except for a supposed equivalent and by mutual consent. Personal liberty and property therefore rest upon the same foundation.

There are four things that a man may call his own. 1, His person, 2, his actions, 3, his property, 4, his opinions. Let us see how each of these circumscribes and modifies those of others, upon the principle of equity and necessity above laid down.

First, as to thE RIGHTS OF PERSON. My object 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 unauthorised encroachment of that will on their rights; that is strictly on the right of self-defence or resistance to interference. Society says, "Let us alone, and we will let you alone :" its object is not to patronize or advise others, that is, forcible; but to protect itself: medling with others for any other plea or purpose is impertinence. But equal rghts destroy one another; nor can there be a right to impossible things, such as the exercise of two equal and incompatible rights. Let A, be the culprit'; B, C, D, &c. are plaintiffs against A, and wish to prevent his taking any unfair or wilful advantage over them. They claim no right to dictate to or domineer over him, but merely to prevent his dictating to and domineering over them, and in this, having right on their side, they have also the power to put it in execution. 1.-A, B, C, D have the common and natural rights of persons, namely, that none of these has a right to offer violence to, or give bodily pain or injury to any of the others. People laugh at natural rights: they might as well deny they have natural persons; for while the last distinction is true and unavoidable by the constitution of things, certain consequences must and will follow undeniable from it-"while this machine is to him," &c. 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 this peculiar and paramount interest does not give a direct and natural right of maintaining this circle of individuality sacred. If another breaks my arm by violence, this will not certainly give him additional health or strength; if he stuns me with a blow or inflicts torture on my limbs, it is I who feel the pain, and not he; nor does it do him any kind of good. It is hard then, if I, who have the greatest interest in my own sensations, have not the greatest right over them; and 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 impertinence. This circle of personal security and right then, is not an imaginary and arbitrary line fixed by law and the will of princes, 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 saying. A, then has not a right to lay violent hands on B, or to infringe on the sphere of his bodily sensations; he must not run foul of another, or he is liable to be repelled and punished for the invasion of the boundaries of that other's just rights and privileges. The coming in contact, or personal assault, is then clearly prohibited, because each person's