in the Edinburgh Review for October 1854, I had occasion to deal with the question of a majority's powers as exemplified in the conduct of public companies; and I cannot better prepare the way for conclusions presently to be drawn, than by quoting a passage from it:— "Under whatever circumstances, or for whatever ends, a number of men co-operate, it is held that if difference of opinion arises among them, justice requires that the will of the greater number shall be executed rather than that of the smaller number; and this rule is supposed to be uniformly applicable, be the question at issue what it may. So confirmed is this conviction, and so little have the ethics of the matter been considered, that to most this mere suggestion of a doubt will cause some astonishment. Yet it needs but a brief analysis to show that the opinion is little better than a political superstition. Instances may readily be selected, which prove, by reductio ad absurdum, that the right of a majority is a purely conditional right, valid only within specific limits. Let us take a few. Suppose that at the general meeting of some philanthropic association, it was resolved that in addition to relieving distress the association should employ home-missionaries to preach down popery. Might the subscriptions of Catholics, who had joined the body with charitable views, be rightfully used for this end? Suppose that of the members of a book-club, the greater number, thinking that under existing circumstances rifle-practice was more important than reading, should decide to change the purpose of their union, and to apply the funds in hand for the purchase of powder, ball, and targets. Would the rest be bound by this decision? Suppose that under the excitement of news from Australia, the majority of a Freehold Land Society should determine, not simply to start in a body for the gold diggings, but to use their accumulated capital to provide outfits. Would this appropriation of property be just to the minority? and must these join the expedition? Scarcely anyone would venture an affirmative answer even to the first of these questions; much less to the others. And why? Because everyone must perceive that by uniting himself with others, no man can equitably be betrayed into acts utterly foreign to the purpose for which he joined them. Each of these supposed minorities would properly reply to those seeking to coerce them :-'We combined with you for a defined object; we gave money and time for the furtherance of that object; on all questions thence arising we tacitly agreed to conform to the will of the greater number; but we did not agree to conform on any other questions. If you induce us to join you by professing a certain end, and then undertake some other end of which we were not apprised, you obtain our support under false pretences; you exceed the expressed or understood compact to which we committed ourselves; and we are no longer bound by your decisions.' Clearly this is the only rational interpretation of the matter. The general principle underlying the right government of every incorporated body, is, that its members contract with each other severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are incorporated; but in no others. To this extent only can the contract hold. For as it is implied in the very nature of a contract, that those entering into it inust know what they contract to do; and as those who unite with others for a specified object, cannot contemplate all the unspecified objects which it is hypothetically possible for the union to undertake; it follows that the contract entered into cannot extend to such unspecified objects and if there exists no expressed or understood contract between the union and its members respecting unspecified objects, then for the majority to coerce the minority into undertaking them, is nothing less than gross tyranny." : Naturally, if such a confusion of ideas exists in respect of the powers of a majority where the deed of incorporation tacitly limits those powers, still more must there exist such a confusion where there has been no deed of incorporation. Nevertheless the same principle holds. I again emphasize the proposition that the members of an incorporated body are bound "severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are incorporated; but in no others." And I contend that this holds of an incorporated nation as much as of an incorporated company. "Yes, but," comes the obvious rejoinder, as there is no deed by which the members of a nation are incorporated—as there neither is, nor ever was, a specification of purposes for which the union was formed, there exist no limits; and, consequently, the power of the majority is unlimited." Evidently it must be admitted that the hypothesis of a social contract, either under the shape assumed by Hobbes or under the shape assumed by Rousseau, is baseless. Nay more, it must be admitted that even had such a contract once been formed, it could not be binding on the posterity of those who formed it. Moreover, if any say that in the absence of those limitations to its powers which a deed of incorporation might imply, there is nothing to prevent a majority from imposing its will on a minority by force, assent must be given an assent, however, joined with the comment that if the superior force of the majority is its justification, then the superior force of a despot backed by an adequate army, is also justified: the problem lapses. What we here seek is some higher warrant for the subordination of minority to majority than that arising from inability to resist physical coercion. Even Austin, anxious as he is to establish the unquestionable authority of positive law, and assuming, as he does, an absolute sovereignty of some kind, monarchic, aristocratic, constitutional, or popular, as the source of its unquestionable authority, is obliged, in the last resort, to admit a moral limit to its action over the community. While insisting, in pursuance of his rigid theory of sovereignty, that a sovereign body originating from the people" is legally free to abridge their political liberty, at its own pleasure or discretion," he allows that "a government may be hindered by positive morality from abridging the political liberty which it leaves or grants to its subjects."* Hence, we have to find, not a physical justification, but a moral justification, for the supposed absolute power of the majority. This will at once draw forth the rejoinder-" Of course, in the absence of any agreement, with its implied limitations, the rule of the majority is unlimited; because it is more just that the majority should * "The Province of Jurisprudence Determined" (second edition), p. 241. have its way than that the minority should have its way." A very reasonable rejoinder this seems until there comes the re-rejoinder. We may oppose to it the equally tenable proposition that, in the absence of an agreement, the supremacy of a majority over a minority does not exist at all. It is co-operation of some kind, from which there arise these powers and obligations of majority and minority; and in the absence of any agreement to co-operate, such powers and obligations are also absent. Here the argument apparently ends in a dead lock. Under the existing condition of things, no moral origin seems assignable either for the sovereignty of the majority or for the limitation of its sovereignty. But further consideration reveals a solution, of the difficulty. For if, dismissing all thought of any hypothetical agreement to co-operate heretofore made, we ask what would be the agreement into which citizens would now enter with practical unanimity, we get a sufficiently clear answer; and with it a sufficiently, clear justification for the rule of the majority inside a certain sphere, but not outside that sphere. Let us first observe a few of the limitations which at once become apparent. Were, all Englishmen now asked if they would agree to co-operate for the teaching of religion, and would give the majority power to fix the creed and the forms of worship, there would come a very emphatic "No" from a large part of them. If, in pursuance of a proposal to revive sumptuary laws, the inquiry were made whether they would bind themselves to abide by the will of the majority in respect of the fashions and qualities of their clothes, nearly all of them would refuse. In like manner if (to take an actual question of the day) people were polled to ascertain whether, in respect of the beverages they drank, they would accept. the decision of the greater number, certainly half, and probably more than half, would decidedly decline. Similarly with respect to many other actions which most men now-a-days regard as of purely, private concern. Whatever desire there might be to co-operate for carrying on, or regulating, such actions, would be far from a unanimous. desire. Manifestly, then, had social co-operation to be commenced by ourselves, and had its purposes to be specified before consent to co-operate could be obtained, there would be large parts of human conduct in respect of which co-operation would be declined; and in respect of which, consequently, no authority by the majority over the minority could be rightfully exercised. Turn now to the converse question-For what ends would all men agree to co-operate? None will deny that for resisting invasion the agreement would be practically unanimous. Excepting only the quakers, who, having done highly useful work in their time, are now dying out, all would unite for defensive war (not, however, for offensive war); and they would, by so doing, tacitly bind themselves to conform to the will of the majority in respect of measures directed to that end. There would be practical unanimity, also, in the agreement to co-operate for defence against internal enemies as against external enemies. Omitting criminals, all must wish to have person and property adequately protected. In short, each citizen desires to preserve his life, to preserve those material things which conduce to maintenance of his life, and to preserve intact his liberties both of using these material things and getting further such. It is obvious to him that he cannot do these things if he acts alone. Against foreign invaders he is powerless unless he combines with his fellows; and the business of protecting himself against domestic invaders, if he did not similarly combine, would be alike onerous, dangerous, and inefficient. In one other co-operation all are interested-use of the territory they inhabit. Did the primitive communal ownership survive, there would survive the primitive communal control of the uses to be made of land by individuals or by groups of them; and decisions of the majority would rightly prevail respecting the terms on which portions of it might be employed for raising food, for making means of communication, and for other purposes. Even at present, though the matter has been complicated by the growth of private landownership, yet, since the State is still supreme owner (every landowner being in law a tenant of the Crown) able to resume possession, or authorize compulsory purchase, at a fair price; the implication, is that the will of the majority is valid respecting the modes in which, and conditions under which, parts of the surface or sub-surface, may. be utilized involving certain agreements made on behalf of the public with private persons and companies. Details are not needful here; nor is it needful to discuss that border region lying between these classes of cases, and to say how much is included in the last and how much is excluded with the first. For present purposes, it is sufficient to recognize the undeniable truth that there are numerous kinds of actions in respect of which men would not, if they were asked, agree with anything like unanimity to be bound by the will of the majority; while there are some kinds of actions in respect of which they would almost unanimously agree to be thus bound. Here, then, we find a definite warrant for enforcing the will of the majority within certain limits, and a definite warrant for denying the authority of its will beyond those limits. But evidently, when analyzed, the question resolves itself into the further question-What are the relative claims of the aggregate and of its units? Are the rights of the community universally valid against the individual? or has the individual some rights which are valid against the community? The judgment given on this point underlies the entire fabric of political convictions formed, and more especially those convictions which concern the proper sphere of government. Here, then, I propose to revive a dormant controversy, with the expectation of reaching a different conclusion from that which is fashionable. Says Professor Jevons, in his work, "The State in Relation to Labour,"-" The first step must be to rid our minds of the idea that there are any such things in social matters as abstract rights." Of like character is the belief expressed by Mr. Matthew Arnold, in his article on copyright :-" An author has no natural right to a property in his production. But then neither has he a natural right to anything whatever which he may produce or acquire."* So, too, I recently read in a weekly journal of high repute, that "to explain once more that there is no such thing as natural right' would be a waste of philosophy." And the view expressed in these extracts is commonly uttered by statesmen and lawyers in a way implying that only the unthinking masses hold any other. One might have expected that utterances to this effect would have been rendered less dogmatic by the knowledge that a whole school of legists on the Continent, maintains a belief diametrically opposed to that maintained by the English school. The idea of Natur-recht is the root-idea of German jurisprudence. Now whatever may be the opinion held respecting German philosophy at large, it cannot be characterized as shallow. A doctrine current among a people distinguished above all others as laborious inquirers, and certainly not to be classed with superficial thinkers, should not be dismissed as though it were nothing more than a popular delusion. This, however, by the way. Along with the proposition denied in the above quotations, there goes a counter-proposition affirmed. Let us see what it is, and what results when we go behind it and seek its warrant. On reverting to Bentham, we find this counter-proposition overtly expressed. He tells us that government fulfils its office "by creating rights which it confers upon individuals: rights of personal security; rights of protection for honour; rights of property;" &c.† Were this doctrine asserted as following from the divine right of kings, there would be nothing in it manifestly incongruous. Did it come to us from ancient Peru, where the Ynca was the source from which everything flowed;" or from Shoa (Abyssinia), where " of their persons and worldly substance he [the king] is absolute master;"§ or from Dahome, where "all men are slaves to the king;" it would * Fortnightly Review in 1880, vol. xxvii. p. 322. + Bentham's Works (Bowring's edition), vol. i. p. 301. § Harris, "Highlands of Ethiopia," ii. 94. Burton, "Mission to Gelele, King of Dahomie," i. p. 226. |