The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• A Historical Sketch of Liberty and Equality As Ideals of English Political Philosophy From the Time of Hobbes to the Time of Coleridge 1 .
• ( a ): Liberty
• ( B ): Equality.
• The Law of Real Property 1
• The Laws of Wales.—the Kindred and the Blood Feud 1 .
• The Criminal Liability of the Hundred 1 .
• Mr Herbert Spencer’s Theory of Society 1 .
• I.: The Ideal State.
• II.: The Law of Equal Liberty.
• The Early History of Malice Aforethought 1
• The Seisin of Chattels 1 .
• The Mystery of Seisin 1 .
• The Deacon and the Jewess; Or, Apostasy At Common Law 1 .
• The Beatitude of Seisin 1
• The Suitors of the County Court 1
• The Shallows and Silences of Real Life 1
• Why the History of English Law Is Not Written 1

MR HERBERT SPENCER’S THEORY OF SOCIETY1 .

I.

the ideal state.

When in 1879 Mr Herbert Spencer published his Data of Ethics in advance of the second and third volumes of his Principles of Sociology, he gave as reasons for thus departing from his philosophic programme his fear lest he should not be able to reach in its proper order the last part of the task which he had marked out for himself, and his unwillingness to leave altogether unfulfilled the purpose which ever since 1842, when he wrote his letters on The Proper Sphere of Government, had been his “ultimate purpose lying behind all proximate purposes,” that, namely, of “finding for the principles of right and wrong in conduct at large a scientific basis2 .” All his many readers are glad in thinking that hitherto this fear has proved groundless, and now that Ceremonial Institutions and Political Institutions have been investigated, we may hope for the completion of that work on Morality of which the Data of Ethics forms but the introductory part. It may seem, therefore, that the present is not a well-chosen moment in which to criticise Mr Spencer’s ethical principles and method as apparent in his already published works, but it may possibly add to the interest with which we shall read any book or books that he may have in store for us if in the meantime we consider what he has led us to expect.

Not the least interesting fact about Mr Spencer’s conception of Ethics is that its chief outlines have remained unaltered for at least thirty years. While he has been maturing an idea of evolution of which but faint glimpses were granted to us in 1851, two cardinal doctrines have been undisturbed from first to last, or rather after every expedition into the material, moral or social world he has returned to his original theme with new faith, new proofs and illustrations. Scientific Ethics must still begin with a study of the relations which will exist between men in that ideal state of society to which we are tending. A law of equal liberty is still the main law, perhaps the only knowable law of those relations. Mr Spencer has indeed cautioned us1 that Social Statics “must not be taken as a literal expression of his present views,” and has given us certain more definite warnings concerning the qualifications with which it should be read, warnings to which it is hoped that due regard will be paid in what here follows; still Mr Spencer “adheres to the leading principles set forth” in his early work, has found new arguments for them in his Data of Ethics, and has applied and defended them in many another book and essay. It would seem, therefore, to be our own fault if we fail to understand the general nature of that undertaking which lies before him in the last part of his task.

Out of the many passages in which Mr Spencer has stated his general doctrine of ethical method, the following may be chosen as one of the most concise:—

“One who has followed the general argument thus far, will not deny that an ideal social being may be conceived as so constituted that his spontaneous activities are congruous with the conditions imposed by the social environment formed by other such beings. In many places, and in various ways, I have argued that conformably with the laws of evolution in general, and conformably with the laws of organisation in particular, there has been, and is, in progress an adaptation of humanity to the social state, changing it in the direction of such an ideal congruity. And the corollary before drawn and here repeated, is that the ultimate man is one in whom this process has gone so far as to produce a correspondence between all the promptings of his nature and all the requirements of his life as carried on in society. If so, it is a necessary implication that there exists an ideal code of conduct formulating the behaviour of the completely adapted man in the completely evolved society. Such a code is that here called Absolute Ethics as distinguished from Relative Ethics—a code the injunctions of which are alone to be considered as absolutely right in contrast with those that are relatively right or least wrong; and which, as a system of ideal conduct, is to serve as a standard for our guidance in solving, as well as we can, the problems of real conduct1 .”

Absolute Ethics stands to Relative Ethics, or Moral Therapeutics, in somewhat the same relation as that in which Physiology stands to Pathology1 . We must have a science of social and moral health, before we can have a science or an art which shall deal with social and moral disease. And moral health implies social health; the perfect man cannot exist in an imperfect society, nor the fully evolved man in a partially evolved society. To make any progress in ethical science we must conceive a “perfect,” “normal,” “ideal,” “fully evolved” society. In the comparison thus instituted between Relative Ethics and Pathology, one who has had no “preparation in Biology” may fancy he detects some confusion between immaturity and disease, but it will be better for him not to meddle or make with these comparisons. In the Social Statics the doctrine seems clear enough that, in so far as an existing society differs from society as it will ultimately be constituted, it is diseased2 . Whether Mr Spencer would hold such language now may be doubted, but the theory that Absolute Ethics is a Physiology to which Relative Ethics is the corresponding Pathology is restated and defended in the Data.

Now Mr Spencer differs from some other promoters of ideal commonwealths in this, namely, in believing that the natural and normal course of human progress tends towards the realisation of his ideal. Not that he thinks all movement progress, for he points out that there has been in some instances positive retrogression. There are backwaters in the stream of history, not to speak of stagnant pools. There is social dissolution as well as social evolution. Still social evolution is in some sense normal. There are always forces which are making for it, though they may be thwarted and neutralised. Indeed, it seems to be his present opinion that the ideal state contemplated by Absolute Ethics can never be quite attained, though we shall approach indefinitely or perhaps infinitely near to it, always provided that cosmic processes do not outrun the evolution of humanity, “reduce the substance of the earth to a gaseous state1 “and end all things in the complete equilibration of universal and, it may be, eternal death2 . I know of no formal proof that the ideal state contemplated by Absolute Ethics is necessarily beyond our attainment, but in First Principles this seems to be either assumed or implicitly proved both as to the balance between mankind and its environment and as to the balance between society and the individual. The former “can never indeed be absolutely reached,” and the process which adapts individual to society and society to individual must go on until the balance between the antagonistic forces approaches “indefinitely near perfection3 .” Perhaps there is something in the doctrine of rhythm as conceived by Mr Spencer which forbids our hoping for more than this. At one time he took a more cheerful view, for we were told in Social Statics that all imperfection must disappear, that “the ultimate development of the ideal man is logically certain—as certain as any conclusion in which we place the most implicit faith; for instance, that all men will die.” This Mr Spencer formally proved as follows:—“All imperfection is unfitness to the conditions of existence. This unfitness must consist either in having a faculty or faculties in excess; or in having a faculty or faculties deficient; or in both. A faculty in excess is one which the conditions of existence do not afford full exercise to; and a faculty that is deficient is one from which the conditions of existence demand more than it can perform. But it is an essential principle of life that a faculty to which circumstances do not allow full exercise diminishes; and that a faculty on which circumstances make excessive demands increases. And so long as this excess and this deficiency continue, there must continue decrease on the one hand and growth on the other. Finally, all excess and all deficiency must disappear; that is, all unfitness must disappear; that is, all imperfection must disappear1 .” Where Mr Spencer now finds the error in this plausible reasoning is not so plain as might be wished,—but certainly he is not now convinced by it.

In the Data of Ethics we are told that “however near to completeness the adaptation of human nature to the conditions of existence at large, physical and social, may become, it can never reach completeness2 .” And here what seem to be very serious limitations are set to the process of adaptation, so serious that the passage may perhaps betray some momentary “lack of faith in such further evolution of humanity as shall harmonise its nature with its conditions3 .” We learn that “in the private relations of men, opportunities for self-sacrifice prompted by sympathy, must ever in some degree, though eventually in a small degree, be afforded by accidents, diseases and misfortunes in general. . . . Flood, fire and wreck must to the last yield at intervals opportunities for heroic acts1 .” Now poor unscientific Virgil painting his golden age got rid of the possibility of wreck by “omnis feret omnia tellus,” a suggestion which betrays a want of “preparation in Biology.” Mr Spencer, though he certainly does not regard the enterprises of industrialism as “priscæ vestigia fraudis,” should, one would imagine, be ready to say that the fully evolved sailor, with body and mind perfectly adapted to all the rhythms of season and wind and wave, will think any talk of wreck no better than a pedantic allusion to the classics. But so long as we are subject to accidents, diseases and misfortunes in general, we have hardly come even “indefinitely near” the perfect state which allows no “scope for further mental culture and moral progress.”

Were we here speculating as to the future of the human race it would become us to consider what are Mr Spencer’s reasons for setting to progress bounds which it shall not pass, and also to ask whether, if mankind is always to fall so very far short of adaptation to its environment as to continue permanently subject to flood, fire and wreck, accidents, diseases and misfortunes in general, there must not to the very last be at times a very wide divergence between the desires and aims of the individual and those of his neighbours. So long as we have not discovered all truth discoverable by man, so long as there is scope for further mental culture, there may well be danger lest some new discovery or invention should throw the social machine out of gear and introduce discordant notes into the pre-established harmony.

But here we are dealing with the ideal of Absolute Ethics, the fully-adapted man, the fully-evolved society. Nor have we plausible pretext for grumbling if Mr Spencer will not allow us to be quite perfect. All tends towards the best in this only possible evolution. The life of man will be sociable, rich, nice, human, long, and not only long but broad. There will be the greatest totality of life, quantum of life being estimated “by multiplying its length into its breadth1 .” Industrialism will have supplanted militancy, the religion of enmity will be reconciled with the religion of amity, and egoism will lie down with altruism. Without further question, therefore, whether we are embarking under a Christopher Columbus who will make for a real concrete America hereafter to be peopled by an ingenious and thriving race, or under a Raphael Hythlodaye who steers for Utopia, we will suppose this ideal state made real and see what may be said of it.

In the first place, we must notice that in this state there will not be any right or wrong in our sense of the words; certainly no wrong in any sense at all, and with us right seems to imply possibility of wrong. The four sanctions of morality will have become useless, and their existence will perhaps be pronounced essentially unthinkable. No religious sanction, for no fear of the supernatural; no legal sanction, for no command of earthly superiors; no social sanction, for society will never be displeased; no internal sanction, for no war in our members, no lusting of the flesh against the spirit, or the spirit against the flesh. If such words as right, duty, ought survive at all, they will survive as pretty archaisms of uncertain meaning. May not even the same be said of liberty; what meaning can it have when no one is ever tempted to interfere with his neighbour’s desires? Law goes too, at least law in one of its meanings. When we say of these fully-evolved men that they will obey the law of equal liberty or any other law, we can only mean that they will obey in the sense in which matter is sometimes said to obey the law of gravity. In short, our ideal code is a code “formulating,” not regulating, “the behaviour of the completely-adapted man in the completely-evolved society.”

This, as I think, is Mr Spencer’s view of the ideal state. In the most interesting chapter of his Data, he has sought to show that not only the external sanctions of morality, theological, legal, social, but also the internal or specifically moral sanction are the accompaniments of imperfect evolution1 . As we become better and better adapted to our environment, self-coercion, like every other form of coercion, tends to disappear. We are brought to the “conclusion, which will be to most very startling, that the sense of duty or moral obligation is transitory, and will diminish as fast as moralisation increases.” “Evidently, then,” we are told, “with complete adaptation to the social state, that element in the moral consciousness which is expressed by the word obligation, will disappear2 .” This is just what we should expect: the notion of obligation or duty disappears. But here as well as elsewhere Mr Spencer cannot be brought to say, perhaps would deny, that the ideal will ever be quite perfectly realised. “In their proper times and places and proportions, the moral sentiments will guide men just as spontaneously and adequately as now do the sensations. And though, joined with their regulating influence when this is called for, will exist latent ideas of the evils which nonconformity would bring, these will occupy the mind no more than do ideas of the evils of starvation at the time when a healthy appetite is being satisfied by a meal1 .” . . . “With complete evolution, then, the sense of obligation, not ordinarily present in consciousness, will be awakened only on those extraordinary occasions that prompt breach of the laws otherwise spontaneously conformed to2 .” This, however, though for some reason or other it will be the last stage of human progress, is clearly not the ideal state, for further adaptation is conceivable. “Ideal congruity” is not yet realised. The ideal man must be adapted to “extraordinary occasions,” as well as to ordinary occasions. The perfect man will never be prompted to break the law. The moral sentiments will lose their “regulating influence” over competing motives, and the “ideas of the evils which nonconformity would bring” having become latent must finally vanish. Whether absolute perfection be practically possible or no, whether or no there will always be some slight tremors and oscillations about the point of equilibrium, it must be with the perfectly-adapted man and the perfectly-adapted society that Absolute Ethics must deal. Obviously to accept as ideal anything short of absolute perfection would be to vitiate the whole procedure. “No conclusions can lay claim to absolute truth, but such as depend upon truths that are themselves absolute. Before there can be exactness in an inference, there must be exactness in the antecedent propositions. A geometrician requires that the straight lines with which he deals shall be veritably straight; and that his circles and ellipses and parabolas shall agree with precise definitions—shall perfectly and invariably answer to specified equations. If you put to him a question in which these conditions are not complied with, he tells you that it cannot be answered. So likewise is it with the philosophical moralist. He treats solely of the straight man. He determines the properties of the straight man; describes how the straight man comports himself; shows in what relationship he stands to other straight men; shows how a community of straight men is constituted. Any deviation from strict rectitude he is obliged wholly to ignore. It cannot be admitted into his premisses without vitiating all his conclusions. A problem in which a crooked man forms one of the elements is insoluble by him1 .” The geometrician is not to be put off with slightly crooked lines because they are the straightest that can be made, nor can the moralist accept as straight a man who is on “extraordinary occasions” prompted to break the moral law.

This should be well understood, for Mr Spencer not unfrequently sets before us a less remote ideal, a state through which we shall pass on the way to an ultimate goal, but not itself by any means the goal. There will be a time—we might call it the Silver Age—when society will still coerce the individual but only for a few purposes. There will still be laws in the lawyer’s sense of the word, the individual will still be compelled to submit his will to the wills of others. But the sphere of political coercion will be much smaller than it at present is. To enforce the law of equal liberty, to protect life, limb, reputation, and property, to compel the performance of contracts, will still be the function of the state. Within this narrow sphere the coercive force will for a time be more active than it is at present. When Mr Huxley labelled Mr Spencer’s political theory as “Administrative Nihilism1 “the latter replied that what he desired was “Specialised Administration,” and he has said that the phrase laissez faire does not fairly represent his opinions2 . The state should give over meddling with many or most of those matters which are now thought proper subjects for coercive regulation and should concentrate its efforts on the provision of justice swift, cheap, foreknowable in accordance with the law of equal liberty. Political coercion should be specialised. Bentham himself has not spoken more strongly than Mr Spencer of the ills which flow from our law’s delay, and Mr Spencer thinks that the remedy lies in concentrating upon the administration of justice those coercive governmental forces which are now dissipated in a thousand and one channels. But beyond this provisional paradise there lies the veritable land of promise. Perhaps the individual’s “right to ignore the state” of which we read in Social Statics3 will never be admitted as a right in our sense of the word, for the existence of a right seems to imply some probability or at least possibility of infringement, but the day will come when coercive co-operation will give way to voluntary co-operation, and no society will attempt to retain a member who wishes to be quit of it. Whether any particular type of voluntary society will be called a state, or a body politic, or the like, would seem to be a question barely about the future history of language, but membership of every social body will be terminable at the will of the member, whose will, however, cannot but be consonant with the will of each of his fellows.

It is necessary to state this clearly, for in his Data of Ethics Mr Spencer sometimes uses words which, if I have caught his meaning, might mislead an unwary reader. Thus a department of Ethics is marked off which “considering exclusively the effects of conduct on others, treats of the right regulation of it with a view to such effects1 .” This division of Ethics comprises the field of Justice. We then read as follows:—“This division of Ethics, considered under its absolute form, has to define the equitable relations among perfect individuals who limit one another’s spheres of action by co-existing, and who achieve their ends by cooperation. It has to do much more than this. Beyond justice between man and man, justice between each man and the aggregate of men has to be dealt with by it. The relations between the individual and the state, considered as representing all individuals, have to be deduced—an important and a relatively-difficult matter. What is the ethical warrant for governmental authority? To what ends may it be legitimately exercised? How far may it rightly be carried? Up to what point is the citizen bound to recognise the collective decisions of other citizens, and beyond what point may he properly refuse to obey them1 ?”

This passage certainly starts in the key of Absolute Ethics; we are “among perfect individuals”; but seemingly at the mention of the state it passes into some Relative mode. If we are still dealing with perfect individuals, and the questions which we are asked are “relatively-difficult,” the other questions of Ethics must indeed be superlatively easy. What is the ethical warrant for governmental authority? None; for no perfect individual will coerce his equally perfect neighbour. As to obedience and disobedience, the only doubt is which of these two words is the more inappropriate when we speak of the relations between fully-evolved men. Of course, therefore, these questions are questions of Relative Ethics; one of the factors they involve is the infliction of pain, and of this Absolute Ethics has nothing to say. “The law of absolute right can take no cognisance of pain, save the cognisance implied by negation2 .”

Again, in the “prospects” which Mr Spencer takes at the end of each section of his Sociology, he seems to contemplate as the final condition of humanity a condition which neither he nor others would call absolutely perfect. Thus he raises the question—What is to be the ultimate political régime3 ?” He thinks that it will not be the same in all communities, and then speculates as to the future of the British Constitution, and ends by saying that “neither these nor any other speculations concerning ultimate political forms can, however, be regarded as anything more than tentative.” In the immediately preceding sentence he says that “municipal and kindred governments may be expected to exercise legislative and administrative powers subject to no greater control by the central government than is needful for the concord of the whole community.” The age of ultimate political forms during which mayors and aldermen (in their ultimate form) exercise legislative powers under the control of the central government is not, I take it, the final epoch of equilibrium in which there will be no “scope for further mental culture and moral progress”; it is at best a penultimate age. So again, when “somewhat more definitely and with somewhat greater positiveness,” Mr Spencer infers the political functions which will be carried on by those ultimate political structures, and predicts that citizens whose natures have through many generations of voluntary co-operation and accompanying regard for one another’s claims, been moulded into the appropriate form, will entirely agree to maintain such political institutions as may continue needful, and then mentions among such institutions “the agency for adjudicating in complex cases where the equitable course is not manifest, and for such legislative and administrative purposes as may prove needful for effecting an equitable division of all natural advantages1 “—when Mr Spencer speaks thus, he has not before him the ideal of Absolute Ethics, but some preparatory millenium during which adjudication and legislation will still be necessary. Adjudication implies conflict. So legislation also implies an imperfect adaptation of man to circumstances; for even if it be said that all the citizens will of their own free-will and without fear of punishment obey every law when made, the dilemma must yet be met: either the laws will bid them do only such things as they would have done if no laws had been made, or the laws will in some instances bid them do other things; in the former case the laws are futile; in the latter either the laws are pernicious, or the citizens are not yet perfect. In the ultimate state there will be no place for command, place only for counsel or advice, for arguments which will convince the reason, not coerce the will of the citizen; and in this sense must be understood the saying that, “however great the degree of evolution reached by an industrial society, it cannot abolish the distinction between the superior and the inferior—the regulators and the regulated1 .” The final form of regulation is advice.

No one will blame Mr Spencer for failing in his Political Institutions to describe that ideal state which is the subject-matter of Absolute Ethics. But even when in the Data he is dealing expressly with Absolute Ethics he sometimes writes as though he had not firmly grasped this ideal state. As is well known, he classifies the duties of one individual towards other individuals thus: he first distinguishes Justice from Beneficence, and then divides Beneficence into Positive and Negative. This may be a sound classification in Moral Therapeutics, and conceivably, though in a somewhat non-natural sense, it may be applied to the conduct of the fully-evolved man in the fully-evolved society. Duty in our sense of the word there will be none, for every man will always do his duty. Still, conceivably we may be able to classify the social actions of fully-evolved men as just, positively beneficent, negatively beneficent. But then on one of the last pages of the Data of Ethics we are told that “under ideal circumstances” Negative Beneficence “has but a nominal existence.” The reason given is as follows:—“In the conduct of the ideal man among ideal men, that self-regulation which has for its motive to avoid giving pain practically disappears. No one having feelings which prompt acts that disagreeably affect others, there can exist no code of restraints referring to this division of conduct1 .” Here Mr Spencer seems to be gliding into the opinion that Absolute Ethics is a code of restraints for ideal men in the ideal society. Let us be fair, then, and treat Justice in the same way as we treat Negative Beneficence. Under ideal conditions Justice also must have “but a nominal existence,” whatever that may mean, for surely among ideal men the regulation, whether imposed on the individual by society or on a man by himself, which has for its object to prevent unjust action “practically,” not to say theoretically, “disappears.” No one is to have feelings which prompt acts that disagreeably affect others, and therefore surely there can exist no code of restraints which will coerce the ideal man into justice. We must not play fast and loose with the conditions of our ideal state.

Mr Spencer, however, is not going to let Justice escape with a nominal existence, for is there not the law of equal liberty, and is not this law a law of Absolute Ethics? Very well, but that law is not an ideal code of restraints which are enforced by any forum, external or internal, against the ideal man, the promptings of whose nature are in perfect harmony with his environment. It can only be a formula which states in general terms what will be the conduct, or some part of the conduct of ideal men towards each other. What shape, then, does this formula take?

Now I understand Mr Spencer to be still of opinion that the maxim of Justice is as follows:—Every man has the fullest liberty to exercise his faculties compatible with the possession of like liberty by every other man1 . The maxim has a negative side:—No man may claim to exercise any liberty which is incompatible with the exercise of the like liberty by every other man. This maxim is perfectly intelligible when applied, as it is in Social Statics, to the actions of us imperfect men, though to the mode in which Mr Spencer applies it some objections might perhaps be taken. So applied it is a test whereby we may judge of the rightfulness of any law or other interference with the liberty of the individual. Every individual is to enjoy equal freedom. If I may be allowed the phrase, the objective freedom of one is to be the same as that of any other. A law does not sin against this supreme rule merely because it is felt as more oppressive by one than by another. To respectable members of society a law against theft is no curtailment of subjective freedom, but there are disreputable members who do feel it to be a restraint on their liberty. The law, however, in this case allows to the vagabond the same sphere of objective freedom that it allows to the man who would never dream of taking his neighbour’s goods. Such at least seems to be Mr Spencer’s view, for he thinks that the maxim of equal liberty allows or even demands the existence of proprietary rights.

But now this maxim is to be transfigured into a formula expressing the conduct of ideal men. How can this be done? Mr Spencer is not of the number of those who believe that in the Golden Age all men will be equal, in the sense that they will all be able to do and think and feel the same things. Quite the contrary: society becomes ever more heterogeneous, and in the ultimate form of society the limit of heterogeneity is reached. There will be more difference between the powers bodily and mental of the ultimate philosopher and the ultimate coal-heaver than there is between the powers of their present half-evolved antitypes. Men will neither do the same things nor be able to do the same things; the division of labour and the accompanying specialisation of abilities will have touched their utmost bounds. Not in this direction may we look for equality. But may it not be that though the activities of men will not be equal, yet they will enjoy equal spheres of action? Such language is perfectly intelligible when used of such men and such societies as at present exist; for when we say that a man is at liberty to do many things that he does not want to do, for instance, that every man is free to construct a system of philosophy, or to speak his mind, or to buy whatever is offered for sale, we have before our minds the fact that there are many things which a man may wish to do, and which but for legal or social coercion he would do, but which he is restrained from doing by restraint which he feels as restraint. He is restrained because he is not in complete harmony with the environing society; there is not yet a “complete equilibrium between man’s desires and the conduct necessitated by surrounding conditions.” But when it has become impossible for any man to have any wish that society will not gladly see him fulfil, can it in any sense whatever be said of him that he is free to do anything save what he actually does? Such an assertion seems to me simply impossible. If ideal men were to be equal in all their faculties and capacities, then it would be possible to say that every one of them would have an equal sphere of action, but as they are to be unequal and yet are not to be prevented either by social pressure or by moral self-coercion from doing anything that they wish to do, their spheres of action, if that phrase be at all appropriate, will be unequal. There can be no “freedom of speech” where no one is ever tempted to say anything that will give pain to his neighbour. There can be no “freedom of contract” where no one dreams of entering into any agreements save those which the whole society will admit to be advantageous to it and to every member of it. The inference that I draw from this is that Mr Spencer’s ideal code, “formulating the behaviour of the completely-adapted man in the completely-evolved society,” should have nothing to say about equal liberty, but meanwhile we must be on our guard, and when we ask for “a straight man” see that we get him.

Of course it may be true that, in a society such as our own, to enforce the law of equal liberty is the best means of hastening the advent of the happy time when man will be fully evolved and “true self-love and social be the same.” Still, this is a matter which requires to be proved, and cannot be proved by the meaningless assertion that this law will be enforced in, or hold good of, a society fully evolved. For instance, if we be discussing freedom of speech, it is quite possible to maintain that perfect adaptation may most readily be produced rather by a rigorous suppression of all speech which can possibly give pain than by granting a wide liberty to those who have unfavourable opinions of their neighbours. This assertion may be very untrue; still it cannot be met by saying that in the ideal state there will be unbounded liberty of speech, any more than it can be met by any other phrase that has no meaning.

Whether Mr Spencer still adheres to the “first principle” of Social Statics—the law of equal liberty—as an accurate and sufficient formula of Justice, is perhaps not quite certain, and since my own opinion is that from that formula it is impossible without a liberal use of quasi-legal fictions to deduce any code of conduct whatever, I would gladly believe in its abandonment. Still, it is quite plain that the Golden Age is to be the reign of Justice. Saturn returns to us and brings back the freedom of contract which our politicians have banished to his planet. Also, it is still plain to Mr Spencer that Justice is (in some sense or other) Equality. For this identification he argues in his last work as in his first. Therefore I may be allowed to point out that the objection here taken to the law of equal liberty as a description of the relations which will exist between fully-evolved men applies also to any theory which finds equality in those relations. Society will be more heterogeneous than it is at present. There will be greater inequality between the faculties and capacities of different men than there is at present. Every faculty, every capacity will be fully exercised and satisfied. Therefore men will not have equal spheres of action; for if every faculty be fully exercised its sphere of action will be completely filled by its action.

I can well understand, though not altogether agree with, Mr Spencer when in Social Statics he writes thus:—“This sphere of existence into which we are thrown not affording room for the unrestrained activity of all, and yet all possessing in virtue of their constitutions similar claims to such unrestrained activity, there is no course but to apportion out the unavoidable restraint equally. Wherefore we arrive at the general proposition, that every man may claim the fullest liberty to exercise his faculties compatible with the possession of the like liberty by every other man1 .” This is a piece of Relative Ethics, of Moral Pathology. The sphere of existence does not afford room for the unrestrained activity of all, because we are not yet fully adapted to our environment. But I cannot understand Mr Spencer when in the Data he writes thus:—“This division of Ethics” [the division which deals with Justice] “considered under its absolute form has to define the equitable relations among perfect individuals who limit one another’s spheres of action by co-existing, and who achieve their ends by co-operation1 .” Of course the word equitable as here used does not imply that the relations among perfect individuals could possibly be other than they ought to be, that they could possibly be inequitable or iniquitous. But Mr Spencer certainly does mean that in some form or another equality (“equity or equalness2 “) is to be found in them. But how? Again, when it is said that these perfect individuals “limit one another’s spheres of action by co-existing,” these words must be used in a queer sense. There will be no coercion, no restraint, no pain inflicted by one on another, no “fear of the visible ruler, the invisible ruler, or of society at large,” finally no self-coercion, for “that element of the moral consciousness which is expressed by the word obligation” will have disappeared. In short, a man’s sphere of action will be limited only by his own spontaneous wishes and his physical constitution. There can be no talk of “the sphere of existence into which we are thrown not affording room for the unrestrained activity of all”; for it is just the essence of the sphere of existence into which we shall have grown that it does give every one room to fulfil his every desire.

Immediately before the passage just quoted, which speaks of the department of Ethics concerned with Justice as having to define the equitable relations among perfect individuals, we may read the following:—“Though having to recognise differences among individuals due to age, sex or other cause, we cannot regard the members of a society as absolutely equal, and therefore cannot deal with problems growing out of their relations with that precision which absolute equality might make possible; yet, considering them as approximately equal in virtue of their common human nature, and dealing with questions of equity on this supposition, we may reach conclusions of a sufficiently-definite kind1 .” I have quoted this passage because I may have spoken too hastily in saying that Mr Spencer is not of the number of those who believe that in the Golden Age all men will be equal. If, however, the words just cited describe the problems with which Absolute Ethics must deal, then he does seem to think for the moment that completely-adapted men in the completely-evolved society will be so much alike in their powers and wishes that Absolute Ethics may ignore the differences between them and yet obtain “conclusions of a sufficiently-definite kind.” Sufficiently definite doubtless, but also one would think sufficiently untrue. Surely in this procedure our strictly scientific Ethics would be substituting the perfectly homogeneous for the superlatively heterogeneous, the least stable for the most stable, the crooked for the straight. I do not think that this is really Mr Spencer’s meaning; rather he is thinking not of what men will do but of what they will not be restrained from doing by legal or social pressure. But I can only repeat that such pressure, these men being completely-adapted men in a completely-evolved society, is out of the question.

Similar difficulties are occasioned by what is said concerning Positive Beneficence1 . We have already seen that the ultimate state of man will still afford opportunities for self-sacrifice though these opportunities will be rare. Flood, fire and wreck, accidents, diseases and misfortunes in general, are to be ours to the last, and will give us now and then a chance for an heroic act. This may be the ultimate state, but seemingly it should not, cannot be the ideal state. The geometrician would not put up with a straight line which on “extraordinary occasions” fell into crookedness. Self-sacrifice implies crookedness somewhere. Either he who offers the sacrifice ought to feel it no sacrifice, or he for whose sake it is made ought not to need the sacrifice. It is, as I think, Mr Spencer’s opinion that Absolute Ethics has no place for self-abnegation. This could hardly be otherwise. It will be so even in the relation of parent to child. The ideal parent will not be called on to give up any pleasure for the sake of the ideal child. In doing for the child all that the child wishes the parent will find pleasure. Whether the day will ever come when the promptings of an inherited experience will teach the weaned child to leave your cockatrice alone, may perchance be doubted, but failing this adaptation of children to their environment, the adaptation of parents to children will probably insure as literal a fulfilment of prophecy as a judicious interpreter should desire. But though self-sacrifice can have in Absolute Ethics no place at all, Mr Spencer apparently thinks that there may be a place for Positive Beneficence. He says:—“Of positive beneficence under its absolute form nothing more specific can be said than that it must become co-extensive with whatever sphere remains for it; aiding to complete the life of each as a recipient of services and to exalt the life of each as a renderer of services. As with a developed humanity the desire for it by every one will so increase, and the sphere for exercise of it so decrease, as to involve an altruistic competition, analogous to the existing egoistic competition, it may be that Absolute Ethics will eventually include what we before called a higher equity, prescribing the mutual limitations of altruistic activities1 .” This last sentence has its difficulties, for an ideal code formulating the relations of perfect men begins to grow more perfect before our very eyes. It is perhaps to include eventually what it does not include now. Once more we must ask, whether perfect men will need, will be able to conceive, a code prescribing what they are to do, and placing them under an obligation to do it. And even this scheme of the higher equity which Absolute Ethics may eventually formulate is not apparently the ultimate state; it is not even the penultimate. For a time there may be an all too brisk competition among wealthy pleasure-hunters for the few remaining chances of an exquisite altruistic gratification, and the higher equity may be needed to prevent philanthropic jobbers from engrossing the occasions of beneficence or forming a “ring” to “corner” all those that are in misery and distress. But as adaptation goes on, the acceptance of a benefit will become very rare, and “altruistic competition, first reaching a compromise under which each restrains himself from taking an undue share of altruistic satisfactions, eventually rises to a conciliation under which each takes care that others shall have their opportunities for altruistic satisfaction1 .” Eventually perhaps Absolute Ethics will formulate first the compromise and then the conciliation, and yet it would seem as if men would not be quite perfect, for this “taking care” implies some self-restraint, some sense of obligation. What then does Absolute Ethics say now about Positive Beneficence? The perfect man will by the same course of conduct secure both his own greatest happiness and the greatest happiness of all. “The moral conduct will be the natural conduct2 ,” or rather morality will be a thing of the past. But we have excluded Negative Beneficence from our ideal code on the ground that “no one having any feelings which prompt acts that disagreeably affect others, there can exist no code of restraints referring to this division of conduct.” Is there then to be even eventually and in the ideal state a code of restraints referring to the division of conduct called Positive Beneficence? If so, are men yet perfect in this ideal state? Seemingly beyond the higher equity there lies the compromise, and beyond the compromise the conciliation, and beyond the conciliation of each man with competing philanthropists must lie the conciliation of each man with himself. “That element in the moral consciousness which is expressed by the word obligation, will disappear,” and the natural conduct will be—well it will be the natural conduct.

Possibly to a perception of this consequence we must attribute Mr Spencer’s apparent reluctance to admit that the ideal of perfect adaptation can ever be reached. We must not have our “straight man” all too straight, or there will be no place for any theory of Justice or Equality. The seer must keep his telescope just a little dusty, in order that the outlook may not be too blank for intelligible description. The sinless innocence of the jelly-fish or the angel is not a good material whereof to fashion the citizens of an instructive model commonwealth, without some admixture of sinful human nature, and “latent ideas” of nonconformity. Whether this has weighed with Mr Spencer, or whether there is something in the doctrine of rhythmic motion that prevents our accepting really perfect social equilibrium even as an ideal, it is not for me to guess, but I think it clear that Mr Spencer should deal with Positive Beneficence and with Justice or Equality as he has already dealt with Negative Beneficence, and say that under ideal circumstances they can have only a nominal existence, which is, humanly speaking, no existence at all.

II.

the law of equal liberty.

In the last number of Mind I ventured to question whether the law of equal liberty which Mr Spencer now some thirty years ago set forth in his Social Statics can in any guise or form find place in that “ideal code of conduct formulating the behaviour of the completely-adapted man in the completely-evolved society1 ,” to determine the contents of which is the task of Absolute Ethics. It remains to consider this law as a rule prescribing the behaviour of men who are not yet perfect, for “when, formulating normal conduct in an ideal society, we have reached a science of absolute ethics, we have simultaneously reached a science which, when used to interpret the phenomena of real societies in their transitional states, full of the miseries due to non-adaptation (which we may call pathological states), enables us to form approximately true conclusions respecting the natures of the abnormalities, and the causes which tend most in the direction of the normal2 .” Now in Social Statics the law in question, the “First Principle,” was thus stated—”Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man3 .” Mr Spencer did not regard this as a complete statement of the whole duty of imperfect man. A man is bound to obey this law and in obeying it he is just; but he ought also to be positively beneficent, negatively beneficent and prudent. The field of positive beneficence grows ever narrower; still in some cases a man ought to sacrifice himself in doing good to others. He ought again to be negatively beneficent, for “various ways exist in which the faculties may be exercised to the aggrieving of other persons without the law of equal freedom being overstepped. A man may behave unamiably, may use harsh language, or annoy by disgusting habits; and whoso thus offends the normal feelings of his fellows, manifestly diminishes happiness1 .” This he ought not to do, for in the last resort happiness is the chief good. Again there are the self-regarding virtues; one ought to be sober and so forth. But these “supplementary restrictions,” imposed by negative beneficence and by prudence, “are of quite inferior authority to the original law. Instead of being, like it, capable of strictly scientific development, they (under existing circumstances) can be unfolded only into superior forms of expediency.”

These “supplementary limitations involve the term happiness, and as happiness is for the present capable only of a generic and not of a specific definition, they do not admit of scientific development. Though abstractedly correct limitations, and limitations which the ideal man will strictly observe, they cannot be reduced to concrete forms until the ideal man exists2 .” . . . “Indeed we may almost say that the first law is the sole law; for we find that of the several conditions to greatest happiness it is the only one at present capable of a systematic development; and we further find that conformity to it ensures ultimate conformity to the others3 .”

Almost supreme in ethics, it is absolutely supreme in politics. In other words, though the exercise I make of the liberty which this law allows me is not morally indifferent, still it cannot be right for any man, prince, potentate or parliament to restrict my freedom within any narrower bounds. Whether we be sovereigns, or whether we be subjects, we must leave every man free to do all that he wills provided that he infringes not the equal liberty of any other man.

Mr Spencer apparently still holds by this law. It is true that in the Data of Ethics he nowhere states it in such plain terms as those cited above. However he tells us that the maintenance of equitable relations between men (and “equitable” means “equal”) is “the condition to the attainment of greatest happiness in all societies; however much the greatest happiness attainable may differ in nature, or amount, or both,” and that “this pre-requisite to social equilibrium,” “this universal requirement,” was what he had in view when he chose for his first work the title Social Statics1 . He has also, at least as lately as 1868, told us that he “adheres to the leading principles set forth” in that book, though not “prepared to abide by all the detailed applications of them,” and further that “the deductions included in Part II.” (the Part which contains that deduction of proprietary rights which forms the main subject of this paper) “may be taken as representing in great measure those which the author would still draw; but had he now to express them he would express some of them differently2 .” We have reason therefore for believing that Mr Spencer adheres to the “First Principle” (which must be among the leading principles) of Social Statics, and that he is still ready to deduce from it proprietary rights in somewhat the same fashion in which he set about that task in his earliest work. Nor is this all, for in his very last work, the Political Institutions, he recurs to the distinction which he took in 1850 between property in land and property in other things, with the result of finding a new justification for one of the most marked peculiarities of the treatment which property received in Social Statics. It seems therefore fair to infer that the doctrine here to be criticised is in the main Mr Spencer’s present doctrine; but in any case the fact that it once was his is a sufficient claim to respectful attention, though, should the law of equal liberty disappear from any Deuteronomy that may yet be forthcoming, this would certainly remove a difficulty from the way of some who would much rather agree than disagree with Mr Spencer.

Now some of the applications which in Social Statics were made of this first principle were, so far as I am aware, quite new, and certainly they were very striking. But the principle itself was not new, for it had been stated and adopted by no less a person than Kant. It seems to me probable, if such a guess may be allowed, that in 1850 Mr Spencer was not aware of this, for on the several occasions on which he has argued that his law is a precise expression of that idea of Justice or Equity which is more or less clearly apprehended by others, he has cited authorities very much less to the point than Kant’s political or juristic writings. The dogma of equal liberty is not at all an unnatural outcome of a theory of Natural Law, or (as, to prevent all ambiguity, we may say) of Natural Right. From of old it stood written that all men are by nature free, and that all men are by nature equal, and when it had at length become plain that men clamouring for natural liberty and natural equality were not to be put off with stories about an original contract, to say that all men ought to be equally free must have seemed an obvious mode of reconciling the possibly conflicting claims of these two ideals of Natural Right. It may well be, therefore, that some exponent of Jus Naturæ, some natural lawyer, had already hit on Mr Spencer’s first principle before it was stated by Kant. At any rate, however, it was stated by Kant, and that very plainly. Already in an essay published in 1793 we find this passage:—

“Ein Jeder darf seine Glückseligkeit auf dem Wege suchen welcher ihm selbst gut dünkt, wenn er nur der Freiheit Anderer, einem ähnlichen Zwecke nachzustreben, die mit der Freiheit von Jedermann nach einem möglichen allgemeinen Gesetze zusammen bestehen kann (d. i. diesem Rechte des Andern), nicht Abbruch thut1 .”

Kant contrasts this principle of freedom with the utilitarian doctrine that a ruler should directly aim at making his subjects happy, and this latter, much in Mr Spencer’s manner, he pronounces despotic. Then in the Rechtslehre this rule of equal liberty stands forth as the general principle of all law (Recht).

“Das Recht ist also der Inbegriff der Bedingungen, unter denen die Willkühr des Einen mit der Willkühr des Anderen nach einem allgemeinen Gesetze der Freiheit zusammen vereinigt werden kann.”

“Eine jede Handlung ist recht, die oder nach deren Maxime die Freiheit der Willkühr eines Jeden mit Jedermanns Freiheit nach einem allgemeinen Gesetze zusammen bestehen kann2 .” . . .

“Das angeborne Recht ist nur ein einziges. Freiheit (Unabhän-gigkeit von eines Anderen nöthigender Willkühr) sofern sie mit jedes Anderen Freiheit nach einem allgemeinen Gesetze zusammen bestehen kann, ist dieses einzige, ursprüngliche, jedem Menschen kraft seiner Menschheit zustehende Recht3 .”

Had the Rechtslehre fallen into Mr Spencer’s hands ere he wrote Social Statics, he might have had the satisfaction of appealing to a high philosophical authority in support of his first principle, but had he watched Kant’s struggles to get out of this formula a coherent system of Natural Right, his satisfaction would probably have been alloyed with some misgivings as to the hopefulness of an undertaking which cost his great predecessor many a curious contortion. Cole-ridge knew well this law of equal liberty. In The Friend1 he says that all the different systems of political justice, all the theories of the rightful origin of government are reducible in the end to three classes, correspondent to the three different points of view in which the human being itself may be contemplated. That being may be regarded as an animal, and we fall into Hobbism; or as endowed with understanding, and utilitarianism follows; or as rational, and we must have politics of the pure reason, or “metapolitics.” Coleridge professing himself an advocate of the second system (he was utilitarian in politics though not in ethics), gives a sketch of the metapolitical system, and in doing so expressly identifies it with the French revolutionary philosophy; but as it seems to me, the theory which he states in order to refute is really an eclectic mosaic of theories part English, part French, part German. But whether or no this sketch fairly represents the opinions which had been held by any one theorist, Coleridge in the following passage not indistinctly foreshadows the main doctrine of Social Statics.

“Justice, austere, unrelenting justice is everywhere holden up as the one thing needful; and the only duty of the citizen, in fulfilling which he obeys all the laws, is not to encroach on another’s sphere of action. The greatest possible happiness of a people is not, according to this system, the object of a governor; but to preserve the freedom of all, by coercing within the requisite bounds the freedom of each. Whatever a government does more than this, comes of evil: and its best employment is the repeal of laws and regulations, not the establishment of them. Each man is the best judge of his own happiness, and to himself must it therefore be entrusted. Remove all the interferences of positive statutes, all monopoly, all bounties, all prohibitions, and all encouragements of importation and exportation, of particular growth and particular manufactures; let the revenues of the state be taken at once from the produce of the soil; and all things will find their level, all irregularities will correct each other, and an indestructible cycle of harmonious motions take place in the moral equally as in the natural world. The business of the governor is to watch incessantly, that the state shall remain composed of individuals, acting as individuals, by which alone the freedom of all can be secured1 .”

Now Coleridge, certainly not biased against the claims of pure reason, rejected the law of equal liberty because, as he thought, it must condemn property. “It is impossible,” he says, “to deduce the right of property from pure reason2 .” To this he appends a characteristic foot-note, “I mean practically and with the inequalities inseparable from the actual existence of property. Abstractedly, the right to property is deducible from the free agency of man. If to act freely be a right, a sphere of action must be so too.” We may doubt whether a kind of property, the esse of which is abstrahi, can be of much value to its owner, but probably Coleridge has his eye on Kant and means that between proprietary rights and the law of equal liberty there is no formal, though there is of necessity a practical contradiction. Kant, as it seems to me, had evaded rather than solved the problem by introducing alongside of his “Allgemeines Princip des Rechts,” a “Rechtliches Postulat der praktischen Vernunft.” Every external object of desire must, he argues, be capable of appropriation. In order that it may be used, it must be appropriated, and it would be absurd to say that anything useful cannot rightfully be used. The easy reply is that doubtless this is so, that a political theory which condemns to eternal uselessness things that are useful condemns itself as worse than useless; but this does not prove that an admission of this postulate of practical reason is not an infringement of the inborn right of every man to have equal liberty with each of his neighbours. Kant, as I understand him, thought it enough to say that there is no formal contradiction between his postulate and his principle. Certainly there is none, for neither formal logic nor any principles which Kant could discover à priori can prove that we are not living in a world wherein it is possible for each of us to satisfy his every wish and yet leave unappropriated as many objects of desire as his fellows can possibly want. Such will perhaps be our condition when we are fully-adapted men in a fully-evolved society, but we happen to know substantially, if not formally, that such is not our present condition and that were it our condition the idea of property, of exclusive right, would be absurd. Who, asks Coleridge, ever thought of property in heaven, property among angels and glorified spirits, beings of pure reason? And why, asks Hume1 , raise landmarks between my neighbour’s field and mine when my heart has made no division between our interests, but shares all his joys and sorrows with the same force and vivacity as if originally my own? Property means that the world being what it is and men being what they are, every man cannot have all that he wants.

The real problem which has to be faced by any scheme of Natural Jurisprudence which rejects arguments based on mere expediency, is just the old problem which Locke set before him, though the terms in which it has to be stated may be new. God made all men free and equal and gave the earth to them in common; it is required to find a justification for exclusive proprietary rights. It is required to find a justification; the conclusion to which the theorist must come is a foregone conclusion, for, as Locke pointed out in memorable words, proprietary rights there must be if the human race is to exist. Carry our socialism never so far, we must end with appropriation, and appropriation by individuals. When did the acorns become the property of the natural man—“when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up1 ?” At latest they must be his when they are fairly in his stomach. Mr Spencer knew well how to use this argument against “M. Proudhon and his party,” and of course there is a plain absurdity in saying that no appropriation can be just. It does not follow, however, that the law of equal liberty is not committed to this absurdity and merely refrains from declaring that property is theft because the use of a word like theft, which commonly imports some blame, might seem to imply that property is at least possibly rightful.

We may now consider how Mr Spencer, in 1850, sought to avoid this ugly and impotent conclusion. Most certainly he meant to avoid it; every man would so mean, but he more than others, for his practical teaching in politics requires that proprietary rights shall be built on a foundation so sure that they can resist the attacks of any occasional exceptional expediency. He begins, as I venture to think, very logically by making large, but not too large, concessions to the anarchist.

“Given a race of beings having like claims to pursue the objects of their desires—given a world adapted to the gratification of those desires—a world into which such beings are similarly born, and it unavoidably follows that they have equal rights to the use of this world. For if each of them has freedom to do all that he wills, provided he infringes not the equal freedom of any other, then each of them is free to use the earth for the satisfaction of his wants, provided he allows all others the same liberty. And, conversely, it is manifest that no one, or part of them, may use the earth in such a way as to prevent the rest from similarly using it; seeing that to do this is to assume greater freedom than the rest and consequently to break the law. Equity, therefore, does not permit property in land1 .”

This we must allow to be very sound argument, very much more logical than anything in the Rechtslehre. By world, however, Mr Spencer must mean the material universe, and when the world of the first sentence becomes the earth of the second, and the land of the fourth, we think that he is but drawing by way of example a particular conclusion from general premises. So with property, this word in our ears connotes some large and permanent right, for we are not accustomed to say that the man in the street is proprietor of the spot upon which he is standing. What “Equity” really does not permit is the exclusive possession by one man of any particle of matter which any other men wish to possess, or the exclusive, though but temporary, occupation of any part of space that any other men wish to occupy. There follows a reductio ad absurdum of any contrary opinion. “If one portion of the earth’s surface may justly become the possession of an individual, and may be held by him for his sole use and benefit, as a thing to which he has an exclusive right, then other portions of the earth’s surface may be so held, and eventually the whole of the earth’s surface may be so held.” This truth of course holds good of other things besides the earth’s surface. If one atom may be owned, all atoms may be owned. “Observe now the dilemma to which this leads. Supposing the entire habitable globe to be so enclosed, it follows that if the landowners have a valid right to its surface, all who are not landowners, have no right at all to its surface. Hence such can exist on the earth by sufferance only. They are all trespassers1 .” Worse is behind if theft be worse than trespass, for should we concede property in one molecule inexorable logic may eventually drive us to concede property in all molecules, and our dilemma will then be theft or suicide.

It is true that Mr Spencer, for some reason or another, spends most of his indignation on property in land. This however does not prevent him from dealing out, in a later passage, impartial though less rhetorical condemnation against such property in movables as now exists. In the meantime he disposes briefly of the existing titles of landowners. It can never be pretended that they are legitimate. “Should any one think so, let him look in the chronicles. Violence, fraud, the prerogative of force, the claims of superior cunning—these are the sources to which those titles may be traced. The original deeds were written with the sword, rather than with the pen: not lawyers, but soldiers, were the conveyancers: blows were the current coin given in payment; and for seals, blood was used in preference to wax. Could valid claims be thus constituted? Hardly.” A title originally bad cannot be made good by transfer. Sale or bequest cannot generate a right. Nor can lapse of time validate the invalid. Clearly the law of equal liberty cannot recognise any particular term of years as sufficient to turn trespass into ownership. Then we are told that “not only have present land-tenures an indefensible origin, but it is impossible to discover any mode in which land can become private property.” The pleas of title by first occupation, by improvement, by, in Locke’s phrase, “mixing one’s labour” with the land, are dispelled in a spirited dialogue between a “cosmopolite” and a backwoodsman who has made unto himself a clearing. “The world is God’s bequest to mankind,” says the former, all men are joint heirs to it; you amongst the number. And because you have taken up your residence on a certain part of it, and have subdued, cultivated, beautified that part—improved it as you say, you are not therefore warranted in appropriating it as entirely private property1 .”

This is equally true of all things other than land. We may subdue, cultivate, beautify, work up into this form or that form, but matter we cannot make, and it belongs to mankind. “The world is God’s bequest to mankind; all men are joint heirs to it”; and if no one has a right to take a bit of it, cultivate it, and call it his own, still less can he have a right to carry a bit bodily away in his hands, his pocket, or his stomach and thus consummate a constructive theft by actual asportation. For this conclusion we must wait until the next chapter: but we get it in good time.

“The reasoning used in the last chapter to prove that no amount of labour, bestowed by an individual upon a part of the earth’s surface, can nullify the title of society to that part, might be similarly employed to show that no one can, by the mere act of appropriating to himself any wild unclaimed animal or fruit, supersede the joint claims of other men to it. It may be quite true that the labour a man expends in catching or gathering, gives him a better right to the thing caught or gathered, than any one other man; but the question at issue is, whether by labour so expended he has made his right to the thing caught or gathered, greater than the rights of all other men put together2 .”

Besides, his right can only be admitted if after the appropriation there is, in Locke’s words, “enough and as good left in common for others.” “A condition like this gives birth to such a host of queries, doubts, and limitations, as practically to neutralise the general proposition entirely,” and out of this inquisition “it seems impossible to liberate the alleged right without such mutilations as to render it in an ethical point of view entirely valueless.”

“Abstractedly,” then, as Coleridge said, there may be a right of property, but practically this is entirely valueless. Property might be rightful in certain conceivable or inconceivable circumstances (circumstances, by the way, that would render the notion of property absurd), but these circumstances are not ours. The landowner and the owner of movables are in the same position, and (though Mr Spencer does not emphasise this conclusion) all existing titles to property of every kind are bad. Indeed in almost all, if not all, cases no title can be made to a movable that does not involve an admission that there may be property in land. Whence the title to an apple, a shilling, a coat? Exchange or gift has not generated it; time has not consecrated it. It is null.

The outlook now seems hopeless, and we are beginning to think that Mr Spencer’s “cosmopolite” was really a chaopolite in disguise. But the law of equal liberty having sufficiently proved its power as an engine of impartial destruction, the time for reconstruction has come, and Mr Spencer has ready for us a scheme which shall give to proprietary rights a legitimate foundation; in theory a very simple scheme, whatever may be the practical difficulties which will impede its accomplishment. He did not recommend what is called “the nationalisation of the land”; that would have helped him but a little way, if any way, towards establishing an equitable system of property. Englishmen can have no better title to England than has Lord A to his deer-forest. We must not exclude Germans or Frenchmen, or the Chinese or the Chinooks from sharing in the rents and profits of our fertile island. The surface of the earth is to be owned by “the public,” “the great corporate body—Society,” “the community,” “mankind at large,” and is to be let out upon leases at the best rent. This done, “all men would be equally landlords; all men would be alike free to become tenants.” Under this system of landtenure all difficulties about property in movables disappear “and the right of property obtains a legitimate foundation1 .”

Does it? This is a serious question; for, however far distant may be the time when mankind at large will “resume” the ownership of the soil, even a theoretical deliverance from our apparently incurable immorality would be of some value. Now suppose that the resumption has taken place. All men are equally landlords, but are all men equally free to become tenants? All men, it is true, are “equally free to bid” for a farm, just as all men are even now equally free to bid for whatever lands or goods are in the market. If all that the law of equal liberty requires in the matter of land-tenure is that every man shall be equally free to bid for land that law is perfectly fulfilled in this country at this moment. But existing titles, it may be said, are bad, and men can not at present purchase an “equitable” title. The answer is that this truly unfortunate state of things will not be improved by the resumption. Mr A will outbid his fellows for a site in the best quarter, for the best farm, the best moor. What will enable him to do so will be his superior wealth, and his wealth will be then as now illgotten. In whatever it may consist, coin or cotton or what not, it will consist of matter subtracted from the common stock of mankind. Sale or bequest can not turn wrong into right, lapse of time will not legalise what was once unlawful, and the long and short of it is that A or his predecessors in title must have robbed mankind and he is to be left in possession of the stolen goods and even suffered to acquire by means thereof a lease of public land. Our original sin of wrongful appropriation is not thus to be purged away.

An equal division of all wealth, which Mr Spencer would strenuously resist, seems at first sight a more hopeful project. Once let there be an equitable distribution of all desirable things, then, it might be thought, we could leave the future to the law of equal liberty. But to a similar proposal (restricted however to an equal division of land) Mr Spencer has given a very noteworthy answer. After urging the difficulty of making a really fair allotment, he asks:—

“Is it proposed that each man, woman, and child, shall have a section? If so, what becomes of all who are to be born next year? And what will be the fate of those whose fathers sell their estates and squander the proceeds. These portionless ones must constitute a class already described as having no right to a resting-place on earth—as living by the sufferance of their fellow-men—as being practically serfs. And the existence of such a class is wholly at variance with the law of equal freedom1 .”

The same, be it observed, will happen after as before the “resumption” of the land. Portionless ones will be born with no more chance of holding land for years than they now have of owning land absolutely. But it is more important to notice that here Mr Spencer throws away the last hope of squaring property with the law of equal liberty. Were it not for the claims of children yet unborn we might harden our hearts and say that this law is not retrospective. Let us sanction existing titles, or let us make some fresh distribution of wealth that seems better than the present, then pass a sponge over the past and abide by our law for the future. But “until it can be proved that God has given one charter of privileges to one generation, and another to the next,” or to adopt other terms, until it can be proved that men hereafter to be born are not men within the meaning of our law, we shall find no answer to Mr Spencer’s question, what is to become of all who are to be born next year? They will come into an appropriated world, appropriated without their consent. Redistribution of wealth on the birth of every child is what our law requires. To find Mr Spencer sanctioning the claims of those “whose fathers sell their estates and squander the proceeds” may surprise us. His usual doctrine is that the sons of the industrially unfit shall not be heirs with the sons of the fit. If the fathers eat sour grapes we must not hinder the salutary process of evolution which sets the children’s teeth on edge. Very possibly this argument about portionless ones may have escaped him unadvisedly in the course of controversy with an imaginary opponent, but it is a sound argument, one sanctioned by the law of equal freedom. If we are to tell the child of penniless parents that he is just as free as the rest of us to acquire property by contract or gift we must make exactly the same remark to Mr Spencer when he denounces “landlordism.”

In short, if we are going to be really serious about our law of equal liberty, and think it capable of a “strictly scientific development,” we must prepare some scheme which will equalise the advantages of all children hereafter to be born. Any such scheme would be ridiculous enough and, what is more, would be condemned by Mr Spencer as worse than ridiculous. There remains but one other course; we may adopt the good old device of a constructive contract to which most of Mr Spencer’s predecessors in the attempt to square property with natural liberty and equality have found themselves sooner or later reduced. But much experience has warned us that if once we take to constructive contracts, we may indeed by the exercise of a little metaphysico-legal legerdemain construct whatever pleases us, but it is easiest and simplest to reconstruct pure Hobbism and then our Law of Nature becomes Quod principi placuit.

We have seen that according to Social Statics the title which any one can now have to movable goods is “in an ethical point of view entirely valueless.” Perhaps on this point Mr Spencer has changed his mind. In Political Institutions he insists on the distinction between property in land and property in other things. The one is still “established by force,” but the other is now “established by contract.” This is presented to us not as guesswork or declamation, but as the sober result of scientific sociology. That this theory is groundless might, in my opinion, be shown even from the evidence which Mr Spencer brings for its support, but a discussion of history would here be quite out of place. We are concerned with what has been only in so far as it determines what ought to be, and all Mr Spencer’s historical generalisations shall therefore be taken as true. We must ask then what inferences he draws from the history of property as to the relations which will exist between men in the ultimate stage of human progress and therefore in that ideal society which it is the business of Absolute Ethics to describe. The answer shall be given in his own words.

“At first sight it seems fairly inferable that the absolute ownership of land by private persons, must be the ultimate state which industrialism brings about. But though industrialism has thus far tended to individualise possession of land, while individualising all other possession, it may be doubted whether the final stage is at present reached. Ownership established by force does not stand on the same footing as ownership established by contract; and though multiplied sales and purchases, treating the two ownerships in the same way, have tacitly assimilated them, the assimilation may eventually be denied. The analogy furnished by assumed rights of possession over human beings, helps us to recognise this possibility. . . . Similarly at a stage more advanced it may be that private ownership of land will disappear. As that primitive freedom of the individual which existed before war established coercive institutions and personal slavery comes to be re-established as militancy declines; so it seems possible that the primitive ownership of land by the community, which, with the development of coercive institutions lapsed in large measure or wholly into private ownership, will be revived as industrialism further develops. The régime of contract, at present so far extended that the right of property in movables is recognised only as having arisen by exchange of services or products under agreements, or by gift from those who had acquired it under such agreements, may be further extended so far that the products of the soil will be recognised as property only by virtue of agreements between individuals as tenants and the community as landowner1 .”

The extreme caution of this prophecy will not escape notice; “it may be doubted,” “may eventually be denied,” “this possibility,” “it may be,” “it seems possible,” these phrases expressive of hesitation and doubt seem to me most appropriate. Certainly “it may be doubted whether the final stage” of property-law “is at present reached,” and for my own part I do not wish to deny that some day the state (possibly mankind at large) may make itself the supreme landlord and let out the land on leases. But the final stage is the ideal stage, and the success of Absolute Ethics depends upon our knowing something, and something precise about the final stage. It is really a matter of some importance to know whether property in land is demanded, or sanctioned, or tolerated, or condemned by the law of equal liberty, and if from Absolute Ethics we get no more than leave to doubt whether such property is rightful, it is to be feared that after all we must fall back on the “moral infidelity” of utilitarianism. Mr Spencer compares the ownership of land to the ownership of slaves, and the comparison is apt for our purpose. As to the latter the law of equal liberty speaks unequivocally; for the right to personal freedom is perhaps the only right, save the right to life, that can be deduced therefrom. Even if we find some difficulty in persuading our law to condemn slavery founded upon contract, there is always open the way of escape to which Kant resorted, that, namely, of saying that the man who sells himself into slavery makes himself a thing, and being a thing can not be bound by his contract. But we must, if possible, prevail on the law to yield us as definite a conclusion about the ownership of land and goods.

We must perforce admit for the sake of argument that property in land was “established by force”—the first deeds shall be written not with the pen but with the sword if Mr Spencer so pleases. Nor will we dispute that property in movables is “established by contract,” but to this phrase we must give some plausible meaning. It is true that in every civilised community the title to chattels is very often a title by contract, a title by sale. The régime of contract, to quote Mr Spencer’s words, is at present so far extended that the right of property in movables is recognised only as having arisen by exchange of services or products under agreements, or by gift from those who had acquired it under such agreements. This is not quite true, for the only title a proprietor has may have arisen from long-continued peaceable possession, and the easy admission that such a title is good is a characteristic mark which distinguishes late from early law. Still Mr Spencer’s proposition is in the main true, but then it is already just equally true of property in land. Purchase, gift, inheritance, undisputed possession, these are the titles to land as well as to goods. As a matter of fact, for the last three or four hundred years illegal force has had just as little to do with the transfer of land in this country as with the transfer of goods, and legal force has had quite as much to do in protecting the owner of chattels as in protecting the landowner. But of course it is not of the title to existing chattels that Mr Spencer speaks, for trace that title but two or three stages back and it is seen to involve a title to land and therefore to be established by force. It must be of property as an institution and of the beginnings of that institution that he speaks, and it must be here that he finds reason for the antithesis of force and contract. Men have agreed that there shall be property in movables, they have not agreed that there shall be property in land. Now we must not seriously impute to Mr Spencer the queer old notion that men did not respect property in movables until, in due form of Natural Law, they had agreed to respect it, but he shall have the advantage of every hypothesis, however extravagant, as to the past. Suppose even that all men met together and made solemn compact that there should be property in movables. Suppose also that this display of ancestral wisdom demands our humblest reverence. All this is not to the point when we are considering the question raised in Social Statics, whether our present or any other distribution of proprietary rights can be sanctioned by that impracticable First Principle. How, we are driven to ask, are you to make good your right to the money in your purse, the wine in your cellar, the cotton in your warehouse? Some one owned a mine, a vineyard, a plantation, and you (to put your case at its best) have bought from him. But his property was established by force, his land was part of the common inheritance. “Would the original claimants be non-suited at the bar of reason because the thing stolen from them had changed hands? Certainly not1 .” Your right is “in an ethical point of view entirely valueless,” and no historical theory can give it any value, unless, indeed, we are to suppose that property in land as well as property in movables is somehow or another “established by contract.” At least this can not be done by any theory that will bear one moment’s consideration. This qualification I add because in his latest work Mr Spencer contrasts private property in “things produced by labour” with private property in “the inhabited area which can not be produced by labour1 .” Of course, however, after his refutation of Locke and the backwoodsman he does not intend to base property on labour. The author of First Principles has not yet to learn that man does not make matter, the author of Social Statics has not yet to learn that mixing our labour with matter does not make that matter ours.

If this reasoning be sound it is hardly worth while to suggest any further difficulties. In these pages, at least, it would be unnecessary to say that should we deduce from our law of equal liberty the rightfulness of something called property, little is thereby accomplished. We want to know very much more than this before we can admit the success of Mr Spencer’s method. We want, for instance, to know something about the extent of testamentary power which this law permits or prescribes, and there is still, outstanding, that old question which Locke put to Sir Robert Filmer—Who is heir by the law of nature? One remark must suffice to show the nature of these difficulties. It does seem, as Mr Spencer himself thought, quite out of the question, that his principle should permit a man to gain a right simply by persistent wrong-doing. But to admit that a right may thus be gained, is, as already said, a marked characteristic of civilised law, and the more civilised, the more industrial we become, the easier we make it for men to acquire property in this way. We do not even feign that the rightful owner has acquiesced in the usurpation or been negligent about the assertion of his rights. At one moment a man is a trespasser; the clock strikes, and he is the rightful owner. How can the law of equal liberty sanction or tolerate this, without sanctioning, or, at least, tolerating whatever rules imposed by prince or parliament prove for the convenience of mankind?

So much has here been said of proprietary rights, that little, if any, space remains for the consideration of those other rights which Mr Spencer proposed to deduce from his First Principle. His treatment of property has particular claims upon our attention both because it is, as yet, the most fully worked-out example of the results that may be expected from Absolute Ethics, and because the practical part of his political teaching requires that he should place proprietary rights beyond the reach of any assaults that may be made by socialist or opportunist. But a very brief glance may be cast at his deduction of some other rights.

The first rights which he sought to obtain were “the rights of life and of personal liberty1 .” These, as I think, must be conceded to him. If A kills B it is physically impossible that B should kill A, and if A puts B under lock and key, then so long as the restraint lasts, B is not free to do the same by A. One naturally expects that Mr Spencer will next deduce that right to be free from bodily injury, from wounds and blows, which is nearly related to the rights just mentioned. It may be by an accident that he has omitted to do so, or he may not have thought it worth doing, but none the less the task has its difficulties. If A smites B, the latter not unfrequently finds himself perfectly free to repay the blow with interest. This is not always the case, and very antique law does draw a marked distinction between an injury that does and an injury that does not deprive the injured person of the power of fighting; but it would be a curious justification of semibarbarism were maiming, condemned by our First Principle, the only principle at present capable of scientific development, while mere “dry blows” were subjected only to the empirical restrictions of negative benevolence. A way of escape might seem to be open to us in the doctrine that “every pain decreases vitality1 ,” that every pain involves some loss of power and therefore some loss of liberty. But Mr Spencer distinctly refuses to avail himself of this refuge, and could hardly do so without falling into the unscientific utilitarianism. “A man may behave unamiably, may use harsh language, or annoy by disgusting habits; and whoso thus offends the normal feelings of his fellows, manifestly diminishes happiness2 .” Nevertheless we are told that his conduct is not condemned by the law of equal liberty; he merely fails in negative beneficence. What is true of the pain occasioned by harsh language is seemingly true also of the pain occasioned by a cuff or a kick; each, if Mr Spencer’s biology and psychology be correct, will decrease vitality, but the latter need no more than the former prevent him who is hurt from having equal liberty with him who hurts.

Thus among the acts causing bodily pain for which men now are punished or compelled to make reparation we must distinguish those which do from those which do not infringe the law of equal liberty; for it is only the former that the state may use its power to suppress, and any attempt to suppress the latter by coercive action would itself be a breach of the law. The result will be not a little strange, but there seems no choice except to hold either that he who beats his neighbour is not to be punished or that he who speaks harshly to his neighbour may rightfully be punished if pain will be saved thereby.

A similar difficulty occurs when we pass to “the right of property in character1 .” Mr Spencer argues that a good reputation may be regarded as property, but in the end admits that possibly his reasoning may be thought inconclusive.

“The position that character is property may be considered open to dispute; and it must be confessed that the propriety of so classifying it is not provable with logical precision. Should any urge that this admission is fatal to the argument, they have the alternative of regarding slander as a breach, not of that primary law which forbids us to trench upon each other’s spheres of activity, but of that secondary one which forbids us to inflict pain on each other.”

This, he says, illustrates a remark previously made, namely, that the division of morality into separate sections, though needful for our due comprehension of it, is yet artificial2 . Now it may at once be allowed that were this a question of mere classification, a question whether the rule which forbids slander looks best under the heading of Justice or the heading of Beneficence, it would hardly be worth discussing, being a matter of taste; but the question whether slander be forbidden by the First Principle is surely one of substantial importance, for on our answer to it depends whether or not the community may rightly strive to prevent slander by punishing the slanderer and giving the slandered a claim for reparation. To use coercion when it is not needed for the maintenance of equal liberty is to infringe the sovereign rule.

It may seem easy at first sight to get from this rule that “right of property in ideas1 ,” for which Mr Spencer vigorously pleads, but really in this case there is just the same difficulty to be met as that which faced us when discussing property in material things. The poet, the artist, the inventor, the discoverer, has but like the confuted backwoodsman made unto himself a clearing, improved some part of the common inheritance and mixed his labour therewith. The cosmopolite must explain to him also, that appropriation is only lawful when “enough and as good is left in common for others.” A man who wrote a book and could conscientiously say of it that nothing therein contained was due to any one but himself, would assuredly need no law of copyright to protect him in the enjoyment of his perfect originality. Mr Spencer does not say this, but he does grant that this proprietary right cannot be admitted without limitation, for it is highly probable that the causes leading to the evolution of a new idea in one mind will eventually produce a like result in some other mind. “Such being the fact, there arises a qualification to the right of property in ideas which it seems difficult and even impossible to specify definitely1 .” “Such a difficulty does not,” we are told, “in the least militate against the right itself,” and yet another important department of law seems here handed over to the empiricist.

Of the rights of women, the rights of children and, above all, that crowning right, the right to ignore the state, it would hardly be fair to speak at present, since here we have both warning in the preface to Social Statics and some indications in other books that we are not yet in full possession of Mr Spencer’s mature opinions. He perhaps would now say that the right to ignore the state will never exist as a right, but that the time will come when no society or community will wish to retain a member who wishes to be quit of it. Apparently he does not think that we have yet reached the stage when the law of equal liberty should without reserve be applied to women, and the liberties of children are certainly not what they were in 1850. “While an average increase of juvenile freedom is to be anticipated, there is reason to think that here and there it has already gone too far. I refer to the United States2 .” In mitigating his claim for a free nursery Mr Spencer has, as it seems to me, made a large concession to common opinion, but at the same time thrown fresh doubt upon his First Principle. “For, if it be asserted that the law of equal freedom applies only to adults; that is, if it be asserted that men have rights, but that children have none, we are immediately met by this question—When does the child become a man? at what period does the human being pass out of the condition of having no rights, into the condition of having rights? None will have the folly to quote the arbitrary dictum of the statute-book as an answer1 .” The temptation to quote the arbitrary dictum is not overpowering, but some sort of answer is now required of Mr Spencer himself, and it seems likely that the word man in our supreme rule must be subjected to an interpreting clause which will be no better than a piece of most empirical utilitarianism.

It is still however possible to hope that Mr Spencer will make over, or has already made over, the law of equal liberty to its true owners, the metapoliticians, the people who would solve ethical and political problems by juristic methods. They know what to do with it, and by implying a contract here and inventing an estoppel there can turn out a result sometimes ingenious and not always anarchical. But Mr Spencer is much too great a philosopher to stoop to these little tricks of the trade, and will find, or perhaps has already found, that his practical teaching in politics has nothing to gain from alliance with this unmanageable formula.

[1]Mind, 1883.

[2]Data of Ethics, Preface.

[1]Social Statics, Preface to American edition of 1864, adopted in Preface to stereotyped edition of 1868.

[1]Data of Ethics, § 105.

[1]Social Statics, c. I, § 3; Data, § 105.

[2]Ch. I, § 3.

[1]First Principles, § 181.

[2]ibid., § 182.

[3]ibid., § 175.

[1]Social Statics, c. 2, § 4.

[2]Data, § 96.

[3]ibid., § 67.

[1]Data, § 96.

[1]Data, § 4, 8.

[1]Data, c. 7.

[2]ibid., § 46.

[1]Data, § 46.

[2]ibid., § 47.

[1]Social Statics, c. I, § 3, cited and defended in Data, § 105.

[1]Critiques and Addresses, I.

[2]Essays, Third Series, v.

[3]C. 19.

[1]Data, § 109.

[1]Data, § 109.

[2]ibid., § 101.

[3]Political Institutions, § 577.

[1]Political Institutions, § 579.

[1]Political Institutions, § 578.

[1]Political Institutions, § 110.

[1]Social Statics, c. 4, § 3; c. 6, § I.

[1]Social Statics, c. 4, § 3.

[1]§ 109.

[2]Data, § 60.

[1]Data, § 109.

[1]Data, § 96, 110.

[1]Data, § 110.

[1]Data, § 97.

[2]ibid., § 47.

[1]Data, § 105.

[2]ibid.

[3]Social Statics, c. 6, § I.

[1]Social Statics, c. 4. § 4.

[2]ibid., § 5.

[3]ibid., § 6.

[1]Data, § 61.

[2]Preface to American edition of 1864, and Preface to English edition of 1868.

[1]“Ueber den Gemeinspruch: Das mag in Theorie richtig sein,” etc. (Kant’s Werke, ed. Hartenstein, vol. VI., pp. 322–3).

[2]Ed. cit., vol. VII., p. 27.

[3]ibid., p. 34.

[1]The Friend, First Section:—“On the Principles of Political Knowledge” (ed. 1863, vol. I., pp. 179 ff.).

[1]First Section, Essay 4 (vol. I., pp. 219, 220).

[2]ibid., p. 222.

[1]Inquiry concerning the Principles of Morals, sec. 3, pt. I.

[1]Of Civil Government, § 28.

[1]Social Statics, c. 9, § I.

[1]Social Statics, c. 9, § 2.

[1]Social Statics, c. 9, § 4.

[2]ibid., c. 10, § 1.

[1]Social Statics, c. 10, § 2.

[1]Social Statics, c. 9, § 5.

[1]Political Institutions, § 540.

[1]Social Statics, c. 9, § 3.

[1]Political Institutions, § 541.

[1]Social Statics, c. 8.

[1]Data, § 36.

[2]Social Statics, c. 4, § 4.

[1]Social Statics, c. 12.

[2]Ibid. § 3.

[1]Social Statics, c. II.

[1]Social Statics, c. II, § 5.

[2]Principles of Sociology, § 341.

[1]Social Statics, c. 17, § I.