210. On the same principle the freedom of contract ought probably to be more restricted in certain directions than is at present the case. The freedom to do as they like on the part of one set of men may involve the ultimate disqualification of many others, or of a succeeding generation, for the exercise of rights. This applies most obviously to such kinds of contract or traffic as affect the health and housing of the people, the growth of population relatively to the means of subsistence, and the accumulation or distribution of landed property. In the hurry of removing these restraints on free dealing between man and man, which have arisen partly perhaps from some confused idea of maintaining morality, but much more from the power of class-interests, we have been apt to take too narrow a view of the range of persons—not one generation merely, but succeeding generations—whose freedom ought to be taken into account, and of the conditions necessary to their freedom ('freedom' here meaning their qualification for the exercise of rights). Hence the massing of population without regard to conditions of health; unrestrained traffic in deleterious commodities; unlimited upgrowth of the class of hired labourers in particular industries which circumstances have suddenly stimulated, without any provision against the danger of an impoverished proletariate in following generations. Meanwhile, under pretence of allowing freedom of bequest and settlement, a system has grown up which prevents the landlords of each generation from being free either in the government of their families or in the disposal of their land, and aggravates the tendency to crowd into towns, as well as the difficulties of providing healthy house-room, by keeping land in a few hands. It would be out of place here to consider in detail the remedies for these evils, or to discuss the question how far it is well to trust to the initiative of the state or of individuals in dealing with them. It is enough to point out the directions in which the state may remove obstacles to the realisation of the capacity for beneficial exercise of rights, without defeating its own object by vitiating the spontaneous character of that capacity.
211. We have now considered the ground of the right to free life, and what is the justification, if any, for the apparent disregard of that right,(a)in war, __(b)__ in the infliction of punishment. We have also dealt with the question of the general office of the state in regard to the development of that capacity in individuals which is the foundation of the right, pointing out on the one hand the necessary limitation of its office in this respect, on the other hand the directions in which it may remove obstacles to that development. We have next to consider the rationale of the rights of property.
In discussions on the 'origin of property' two questions are apt to be mixed up which, though connected, ought to be kept distinct. One is the question how men have come to appropriate; the other the question how the idea of right has come to be associated with their appropriations. As the term 'property' not only implies a permanent possession of something, or a possession which can only be given up with the good will of the possessor, but also a possession recognised as a right, an inquiry into the origin of property must involve both these questions, but it is not the less important that the distinction between them should be observed. Each of them again has both its analytical and its historical side. In regard to the first question it is important to learn all that can be learnt as to the kind of things that were first, and afterwards at successive periods, appropriated; as to the mode in which, and the sort of persons or societies by whom, they were appropriated. This is an historical inquiry. But it cannot take the place of a metaphysical or psychological analysis of the conditions on the part of the appropriating subject implied in the fact that he does such a thing as appropriate. So, too, in regard to the second question, it is important to investigate historically the forms in which the right of men in their appropriations has been recognised; the parties, whether individuals or societies, to whom the right has been allowed; and the sort of objects, capable of appropriation, to which it has been considered to extend. But neither can these inquiries help us to understand, in the absence of a metaphysical or moral analysis, either what is implied in the ascription of a right to certain appropriations, or why there should be a right to them.
212. We have then two questions, as above stated, each requiring two different methods of treatment. But neither have the questions themselves, nor the different methods of dealing with them, been duly distinguished.
It is owing to confusion between them that the right of property in things has been supposed to originate in the first occupancy of them. This supposition, in truth, merely disguises the identical proposition that in order to property there must to begin with have been some appropriation. The truism that there could be no property in anything which had not been at some time and in some manner appropriated, tells us nothing as to how or why the property in it, as a right, came to be recognised, or why that right should be recognised. But owing to the confusion between the origin of appropriation and the origin of property as a right, an identical proposition as to the beginning of appropriation seemed to be an instructive statement as to the basis of the rights of property. Of late, in a revulsion from theories founded on identical propositions, 'historical' inquiries into the 'origin of property' have come into vogue. The right method of dealing with the question has been taken to lie in an investigation of the earliest forms in which property has existed. But such investigation, however valuable in itself, leaves untouched the questions, (1) what it is in the nature of men that makes it possible for them, and moves them, to appropriate; (2) why it is that they conceive of themselves and each other as having a right in their appropriations; (3) on what ground this conception is treated as a moral authority,—as one that should be acted on.
213. (1) Appropriation is an expression of will; of the individual's effort to give reality to a conception of his own good; of his consciousness of a possible self-satisfaction as an object to be attained. It is different from mere provision to supply a future want. Such provision appears to be made by certain animals, e.g. ants. It can scarcely be made under the influence of the imagination of pain incidental to future want derived from previous experience, for the ant lays up for the winter though it has not previously lived through the winter. It may be suggested that it does so from inherited habit, but that this habit has originally arisen from an experience of pain on the part of ants in the past. Whether this is the true account of the matter we have not, I think,—perhaps from the nature of the case we cannot have—the means of deciding. We conceal our ignorance by saying that the ant acts instinctively, which is in effect a merely negative statement, that the ant is not moved to make provision for winter either by imagination of the pain which will be felt in winter if it does not, or by knowledge (conception of the fact) that such pain will be felt. In fact, we know nothing of the action of the ant from the inside, or as an expression of consciousness. If we are not entitled to deny dogmatically that it expresses consciousness at all, neither are we entitled to say that it does express consciousness, still less what consciousness it expresses. On the other hand we are able to interpret the acts of ourselves, and of those with whom we can communicate by means of signs to which we and they attach the same meaning, as expressions of consciousness of a certain kind, and thus by reflective analysis to assure ourselves that acts of appropriation in particular express a will of the kind stated; that they are not merely a passing employment of such materials as can be laid hands on to satisfy this or that want, present or future, felt or imagined, but reflect the consciousness of a subject which distinguishes itself from its wants; which presents itself to itself as still there and demanding satisfaction when this or that want, or any number of wants, have been satisfied; which thus not merely uses a thing to fill a want, and in so doing at once destroys the thing and for the time removes the want, but says to itself, 'This shall be mine to do as I like with, to satisfy my wants and express my emotions as they arise.'
214. One condition of the existence of property, then, is appropriation, and that implies the conception of himself on the part of the appropriator as a permanent subject for whose use, as instruments of satisfaction and expression, he takes and fashions certain external things, certain things external to his bodily members. These things, so taken and fashioned, cease to be external as they were before. They become a sort of extension of the man's organs, the constant apparatus through which he gives reality to his ideas and wishes. But another condition must be fulfilled in order to constitute property, even of the most simple and primitive sort. This is the recognition by others of a man's appropriations as something which they will treat as his, not theirs, and the guarantee to him of his appropriations by means of that recognition. What then is the ground of the recognition? The writers of the seventeenth and eighteenth centuries, who discussed the basis of the rights of property, took it for granted, and in so doing begged the question. Grotius makes the right of property rest on contract, but clearly until there is a recognised 'meum' and 'tuum' there can be no contract. Contract presupposes property. The property in a particular thing may be derived from a contract through which it has been obtained in exchange for another thing or for some service rendered, but that implies that it was previously the property of another, and that the person obtaining it had a property in something else, if only in the labour of his hands, which he could exchange for it. [1] Hobbes is so far more logical that he does not derive property from contract, but treats property and 'the validity of covenants' as co-ordinately dependent on the existence of a sovereign power of compulsion. [2] But his account of this, as of all other forms of right, is open to the objection (before dwelt on) that if the sovereign power is merely a strongest force it cannot be a source of rights; and that if it is other than this, if it is a representative and maintainer of rights, its existence presupposes rights, which remain to be accounted for. As previously shown, Hobbes, while professing to make all rights dependent on the sovereign power, presupposes rights in his account of the institution of this power. The validity of contracts 'begins not but with its institution,' yet its own right is derived from an irrevocable contract of all with all in which each devolves his 'persona,' the body of his rights, upon it. Without pressing his particular forms of expression unfairly against him, it is clear that he could not really succeed in thinking of rights as derived simply from supreme force; that he could not associate the idea of absolute right with the sovereign without supposing prior rights which it was made the business of the sovereign to enforce, and in particular such a recognised distinction between 'meum' and 'tuum' as is necessary to a covenant. Nor when we have dropped Hobbes' notion of government or law-making power, as having originated in a covenant of all with all, shall we succeed any better in deriving rights of property, any more than other rights, from law or a sovereign which makes law, unless we regard the law or sovereign as the organ or sustainer of a general social recognition of certain powers, as powers which should be exercised.
[1] Grotius,De Jure, etc. Book II, chap. ii. Sect. 5. 'Simul discimus quomodo res in proprietatem iverint … pacto quodam aut expresso, ut per divisionem, aut tacito, ut per occupationem: simul atque enim communio displicuit, nec instituta est divisio, censeri debet inter omnes convenisse ut, quod quisque occupasset, id proprium haberet.' But he supposes a previous process by which things had been appropriated (Sect. 4), owing to the necessity of spending labour on them in order to satisfy desire for a more refined kind of living than could be supplied by spontaneous products of the earth. 'Hinc discimus quae fuerit causa, ob quam a primaeva communione rerum primo mobilium, deinde et immobilium discessum est: nimirum quod non contenti homines vesci sponte natis, antra habitare … vitae genus exquisitius delegissent, industria opus fuit, quam singuli rebus singulis adhiberent.' … The 'communio rerum,' thus departed from when labour came to be expended on things, Grotius had previously described (Sect. 1) as a state of things in which everyone had a right to whatever he could lay hands on. 'Erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset. Hinc factum ut statim quisque hominum ad suos usus arripere posset quod vellet, et quae consumi poterant consumere, ac talis usus universalis juris erat tum vice proprietatis. Nam quod quisque sic arripuerat, id ei eripere alter nisi per injuriam non poterat.' Here then a virtual right of property, though not so called, seems to be supposed in two forms previous to the establishment of what Grotius calls the right of property by contract. There is (1) a right of property in what each can 'take to his use and consume' out of the raw material supplied by nature; (2) a further right of each man in that on which he has expended labour. Grotius does not indeed expressly call this a right, but if there is a right, as he says there is, on the part of each man to that which he is able 'ad suos arripere usus,' much more must there be a right to that which he has not only taken but fashioned by his labour. On the nature and rationale of this right Grotius throws no light, but it is clearly presupposed by that right of property which he supposes to be derived from contract, and must be recognised before any such contract could be possible.
[2] 'There is annexed to the sovereignty the whole power of prescribing the rules whereby every man may know what goods he may enjoy and what actions he may do without being molested by any of his fellow-subjects: and this is it men call propriety. For before constitution of sovereign power all men had right to all things, which necessarily causeth war; and therefore this propriety, being necessary to peace, and depending on sovereign power, is the act of that power in order to the public peace.' (Leviathan, pt. II, chap. xviii.) 'The nature of justice consisteth in keeping of valid covenants, but the validity of covenants begins not but with the constitution of a civil power, sufficient to compel men to keep them; and then it is also that propriety begins.' (Ibid. chap, xv.)
215. Locke [1] treats property—fairly enough so long as only its simplest forms are in question—as derived from labour. By the same law of nature and reason by which a man has 'a property in his own person,' 'the labour of his body and the work of his hand are properly his' too. Now that the right to free life, which we have already dwelt on, carries with it a certain right to property, to a certain permanent apparatus beyond the bodily organs, for the maintenance and expression of that life, is quite true. But apart from the difficulty of tracing some kinds of property, in which men are in fact held to have a right, to the labour of anyone, even of someone from whom it has been derived by inheritance or bequest (a difficulty to be considered presently), to say that it is a 'law of nature and reason' that a man should have a property in the work of his hands is no more than saying that that on which a man has impressed his labour is recognised by others as something which should be his, just as he himself is recognised by them as one that should be his own master. The ground of the recognition is the same in both cases, and it is Locke's merit to have pointed this out; but what the ground is he does not consider, shelving the question by appealing to a law of nature and reason.
[1]Civil Government, chap. v. The most important passages are quoted in Fox Bourne'sLife of Locke, vol. ii. pp. 171 and 172.
216. The ground of the right to free life, the reason why a man is secured in the free exercise of his powers through recognition of that exercise by others as something that should be, lay, as we saw, in the conception on the part of everyone who concedes the right to others and to whom it is conceded, of an identity of good for himself and others. It is only as within a society, as a relation between its members, though the society be that of all men, that there can be such a thing as a right; and the right to free life rests on the common will of the society, in the sense that each member of the society within which the right subsists contributes to satisfy the others in seeking to satisfy himself, and that each is aware that the other does so; whence there results a common interest in the free play of the powers of all. And just as the recognised interest of a society constitutes for each member of it the right to free life, just as it makes each conceive of such life on the part of himself and his neighbour as what should be, and thus forms the basis of a restraining custom which secures it for each, so it constitutes the right to the instruments of such life, making each regard the possession of them by the other as for the common good, and thus through the medium first of custom, then of law, securing them to each.
217. Thus the doctrine that the foundation of the right of property lies in the will, that property is 'realised will,' is true enough if we attach a certain meaning to 'will'; if we understand by it, not the momentary spring of any and every spontaneous action, but a constant principle, operative in all men qualified for any form of society, however frequently overborne by passing impulses, in virtue of which each seeks to give reality to the conception of a well-being which he necessarily regards as common to himself with others. A will of this kind explains at once the effort to appropriate, and the restraint placed on each in his appropriations by a customary recognition of the interest which each has in the success of the like effort on the part of the other members of a society with which he shares a common well-being. This customary recognition, founded on a moral or rational will, requires indeed to be represented by some adequate force before it can result in a real maintenance of the rights of property. The wild beast in man will not otherwise yield obedience to the rational will. And from the operation of this compulsive force, very imperfectly controlled by the moral tendencies which need its co-operation,—in other words from the historical incidents of conquest and government, —there result many characteristics of the institution of property, as it actually exists, which cannot be derived from the spiritual principle which we have assigned as its foundation. Still, without that principle it could not have come into existence, nor would it have any moral justification at all.
218. It accords with the account given of this principle that the right of property, like every other form of right, should first appear within societies founded on kinship, these being naturally the societies within which the restraining conception of a common well-being is first operative. We are apt indeed to think of the state of things in which the members of a family or clan hold land and stock in common, as the antithesis of one in which rights of property exist. In truth it is the earliest stage of their existence, because the most primitive form of society in which the fruit of his labour is secured to the individual by the society, under the influence of the conception of a common well-being. The characteristic of primitive communities is not the absence of distinction between 'meum' and 'tuum,' without which no society of intelligent as opposed to instinctive agents would be possible at all, but the common possession of certain materials, in particular land, on which labour may be expended. It is the same common interest which prevents the separate appropriation of these materials, and which secures the individual in the enjoyment and use of that which his labour can extract from them.
219. From the moral joint of view, however, the clan-system is defective, because under it the restraint imposed upon the individual by his membership of a society is not, and has not the opportunity of becoming, a self-imposed restraint, a free obedience, to which, though the alternative course is left open to him, the individual submits, because he conceives it as his true good. The area within which he can shape his own circumstances is not sufficient to allow of the opposite possibilities of right and wrong being presented to him, and thus of his learning to love right for its own sake. And the other side of this moral tutelage of the individual, this withholding from him of the opportunity of being freely determined by recognition of his moral relations, is the confinement of those relations themselves, which under the clan-system have no actual existence except as between members of the same clan. A necessary condition at once of the growth of a free morality, i.e. a certain behaviour of men determined by an understanding of moral relations and by the value which they set on them as understood, and of the conception of those relations as relations between all men, is that free play should be given to every man's powers of appropriation. Moral freedom is not the same thing as a control over the outward circumstances and appliances of life. It is the end to which such control is a generally necessary means, and which gives it its value. In order to obtain this control, men must cease to be limited in their activities by the customs of the clan. The range of their appropriations must be extended; they must include more of the permanent material on which labour may be expended, and not merely the passing products of labour spent on unappropriated material; and they must be at once secured and controlled in it by the good-will, by the sense of common interest, of a wider society, of a society to which any and every one may belong who will observe its conditions, and not merely those of a particular parentage; in other words by the law, written or unwritten, of a free state.
220. It is too long a business here to attempt an account of the process by which the organisation of rights in the state has superseded that of the clan, and at the same time the restriction of the powers of appropriation implied in the latter has been removed. It is important to observe, however, that this process has by no means contributed unmixedly to the end to which, from the moral point of view, it should have contributed. That end is at once the emancipation of the individual from all restrictions upon the free moral life, and his provision with means for it. But the actual result of the development of rights of property in Europe, as part of its general political development, has so far been a state of things in which all indeedmayhave property, but great numbers in fact cannot have it in that sense in which alone it is of value, viz. as a permanent apparatus for carrying out a plan of life, for expressing ideas of what is beautiful, or giving effect to benevolent wishes. In the eye of the law they have rights of appropriation, but in fact they have not the chance of providing means for a free moral life, of developing and giving reality or expression to a good will, an interest in social well-being. A man who possesses nothing but his powers of labour and who has to sell these to a capitalist for bare daily maintenance, might as well, in respect of the ethical purposes which the possession of property should serve, be denied rights of property altogether. Is the existence of so many men in this position, and the apparent liability of many more to be brought to it by a general fall of wages, if increase of population goes along with decrease in the productiveness of the earth, a necessary result of the emancipation of the individual and the free play given to powers of appropriation? or is it an evil incident, which may yet be remedied, of that historical process by which the development of the rights of property has been brought about, but in which the agents have for the most part had no moral objects in view at all?
221. Let us first be clear about the points in which the conditions of property, as it actually exists, are at variance with property according to its idea or as it should be. The rationale of property, as we have seen, is that everyone should be secured by society in the power of getting and keeping the means of realising a will, which in possibility is a will directed to social good. Whether anyone's will is actually and positively so directed, does not affect his claim to the power. This power should be secured to the individual irrespectively of the use which he actually makes of it, so long as he does not use it in a way that interferes with the exercise of like power by another, on the ground that its uncontrolled exercise is the condition of attainment by man of that free morality which is his highest good. It is not then a valid objection to the manner in which property is possessed among us, that its holders constantly use it in a way demoralising to themselves and others, any more than such misuse of any other liberties is an objection to securing men in their possession. Only then is property held in a way inconsistent with its idea, and which should, if possible, be got rid of, when the possession of property by one man interferes with the possession of property by another; when one set of men are secured in the power of getting and keeping the means of realising their will, in such a way that others are practically denied the power. In that case it may truly be said that 'property is theft.' The rationale of property, in short, requires that everyone who will conform to the positive condition of possessing it, viz. labour, and the negative condition, viz. respect for it as possessed by others, should, so far as social arrangements can make him so, be a possessor of property himself, and of such property as will at least enable him to develope a sense of responsibility, as distinct from mere property in the immediate necessaries of life.
222. But then the question arises, whether the rationale of property, as thus stated, is not inconsistent with the unchecked freedom of appropriation, or freedom of appropriation checked only by the requirement that the thing appropriated shall not have previously been appropriated by another. Is the requirement that every honest man should be a proprietor to the extent stated, compatible with any great inequalities of possession? In order to give effect to it, must we not remove those two great sources of the inequality of fortunes, (1) freedom of bequest, and the other arrangements by which the profits of the labour of several generations are accumulated on persons who do not labour at all; (2) freedom of trade, of buying in the cheapest market and selling in the dearest, by which accumulated profits of labour become suddenly multiplied in the hands of a particular proprietor? Now clearly, if an inequality of fortunes, of the kind which naturally arises from the admission of these two forms of freedom, necessarily results in the existence of a proletariate, practically excluded from such ownership as is needed to moralise a man, there would be a contradiction between our theory of the right of property and the actual consequence of admitting the right according to the theory; for the theory logically necessitates freedom both in trading and in the disposition of his property by the owner, so long as he does not interfere with the like freedom on the part of others; and in other ways as well its realisation implies inequality.
223. Once admit as the idea of property that nature should be progressively adapted to the service of man by a process in which each, while working freely or for himself, i.e. as determined by a conception of his own good, at the same time contributes to the social good, and it will follow that property must be unequal. If we leave a man free to realise the conception of a possible well-being, it is impossible to limit the effect upon him of his desire to provide for his future well-being, as including that of the persons in whom he is interested, or the success with which at the prompting of that desire he turns resources of nature to account. Considered as representing the conquest of nature by the effort of free and variously gifted individuals, property must be unequal; and no less must it be so if considered as a means by which individuals fulfil social functions. As we may learn from Aristotle, those functions are various and the means required for their fulfilment are various. The artist and man of letters require different equipment and apparatus from the tiller of land and the smith. Either then the various apparatus needed for various functions must be provided for individuals by society, which would imply a complete regulation of life incompatible with that highest object of human attainment, a free morality; or we must trust for its provision to individual effort, which will imply inequality between the property of different persons.
224. The admission of freedom of trade follows from the same principle. It is a condition of the more complete adaptation of nature to the service of man by the free effort of individuals. 'To buy in the cheapest and sell in the dearest market' is a phrase which may no doubt be used to cover objectionable transactions, in which advantage is taken of the position of sellers who from circumstances are not properly free to make a bargain. It is so employed when the cheapness of buying arises from the presence of labourers who have no alternative but to work for 'starvation wages.' But in itself it merely describes transactions in which commodities are bought where they are of least use and sold where they are of most use. The trader who profits by the transaction is profiting by what is at the same time a contribution to social well-being.
In regard to the freedom which a man should be allowed in disposing of his property by will or gift, the question is not so simple. The same principle which forbids us to limit the degree to which a man may provide for his future, forbids us to limit the degree to which he may provide for his children, these being included in his forecast of his future. It follows that the amount which children may inherit may not rightly be limited; and in this way inequalities of property, and accumulations of it to which possessors have contributed nothing by their own labour, must arise. Of course the possessor of an estate, who has contributed nothing by his own labour to its acquisition, may yet by his labour contribute largely to the social good, and a well-organised state will in various ways elicit such labour from possessors of inherited wealth. Nor will it trust merely to encouraging the voluntary fulfilment of social functions, but will by taxation make sure of some positive return for the security which it gives to inherited wealth. But while the mere permission of inheritance, which seems implied in the permission to a man to provide unlimitedly for his future, will lead to accumulations of wealth, on the other hand, if the inheritance is to be equal among all children, and, failing children, is to pass to the next of kin, the accumulation will be checked. It is not therefore the right of inheritance, but the right of bequest, that is most likely to lead to accumulation of wealth, and that has most seriously been questioned by those who hold that universal ownership is a condition of moral well-being. Is a proprietor to be allowed to dispose of his property as he likes among his children (or, if he has none, among others), making one very rich as compared with the others, or is he to be checked by a law requiring approximately equal inheritance?
225. As to this, consider that on the same principle on which we hold that a man should be allowed to accumulate as he best can for his children, he should have discretion in distributing among his children. He should be allowed to accumulate, because in so doing he at once expresses and developes the sense of family responsibility, which naturally breeds a recognition of duties in many other directions. But if the sense of family responsibility is to have free play, the man must have due control over his family, and this he can scarcely have if all his children as a matter of necessity inherit equally, however undutiful or idle or extravagant they may be. For this reason the true theory of property would seem to favour freedom of bequest, at any rate in regard to wealth generally. There may be special reasons, to be considered presently, for limiting it in regard to land. But as a general rule, the father of a family, if left to himself and not biassed by any special institutions of his country, is most likely to make that distribution among his children which is most for the public good. If family pride moves him to endow one son more largely than the rest, in order to maintain the honour of his name, family affection will keep this tendency within limits in the interest of the other children, unless the institutions of his country favour the one tendency as against the other. And this they will do if they maintain great dignities, e.g. peerages, of which the possession of large hereditary wealth is virtually the condition, and if they make it easy, when the other sons have been impoverished for the sake of endowing the eldest, to maintain the former at the public expense by means of appointments in the church or state.
It must be borne in mind, further, that the freedom of bequest which is to be justified on the above principles must not be one which limits that freedom in a subsequent generation, It must therefore be distinguished from the power of settlement allowed by English law and constantly exercised in dealing with landed estate; for this power, as exercised by the landowning head of a family in one generation, prevents the succeeding head of the family from being free to make what disposition he thinks best among his children and ties up the succession to the estate to his eldest son. The practice of settlement in England, in short, as applied to landed estate, cancels the freedom of bequest in the case of most landowners and neutralises all the dispersive tendency of family affection, while it maintains in full force all the accumulative tendency of family pride. This, however, is no essential incident of a system in which the rights of individual ownership are fully developed, but just the contrary.
226. The question then remains, whether the full development of those rights, as including that of unlimited accumulation of wealth by the individual and of complete freedom of bequest on his part, necessarily carries with it the existence of a proletariate, nominal owners of their powers of labour, but in fact obliged to sell these on such terms that they are owners of nothing beyond what is necessary from day to day for the support of life, and may at any time lose even that, so that, as regards the moral functions of property, they may be held to be not proprietors at all; or whether the existence of such a class is due to causes only accidentally connected with the development of rights of individual property.
We must bear in mind (1) that the increased wealth of one man does not naturally mean the diminished wealth of another. We must not think of wealth as a given stock of commodities of which a larger share cannot fall to one without taking from the share that falls to another. The wealth of the world is constantly increasing in proportion as the constant production of new wealth by labour exceeds the constant consumption of what is already produced, There is no natural limit to its increase except such as arises from the fact that the supply of the food necessary to sustain labour becomes more difficult as more comes to be required owing to the increase in the number of labourers, and from the possible ultimate exhaustion of the raw materials of labour in the world. Therefore in the accumulation of wealth, so far as it arises from the saving by anyone of the products of his labour, from his bequest of this capital to another who farther adds to it by saving some of the profit which the capital yields, as employed in the payment for labour or in trade either by the capitalist himself or someone to whom he lends it, and from the continuation of this process through generations, there is nothing which tends to lessen for anyone else the possibilities of ownership. On the contrary, supposing trade and labour to be free, wealth must be constantly distributed throughout the process in the shape of wages to labourers and of profits to those who mediate in the business of exchange.
227. It is true that the accumulation of capital naturally leads to the employment of large masses of hired labourers. But there is nothing in the nature of the case to keep these labourers in the condition of living from hand to mouth, to exclude them from that education of the sense of responsibility which depends on the possibility of permanent ownership. There is nothing in the fact that their labour is hired in great masses by great capitalists to prevent them from being on a small scale capitalists themselves. In their position they have not indeed the same stimulus to saving, or the same constant opening for the investment of savings, as a man who is αὐτουργός; [1] but their combination in work gives them every opportunity, if they have the needful education and self-discipline, for forming societies for the investment of savings. In fact, as we know, in the well-paid industries of England the better sort of labourers do become capitalists, to the extent often of owning their houses and a good deal of furniture, of having an interest in stores, and of belonging to benefit-societies through which they make provision for the future. It is not then to the accumulation of capital, but to the condition, due to antecedent circumstances unconnected with that accumulation, of the men with whom the capitalist deals and whose labour he buys on the cheapest terms, that we must ascribe the multiplication in recent times of an impoverished and reckless proletariate.
[1] [Greek αὐτουργός (autourgos) = yeoman farmer, literally one who works for himself Tr.]
228. It is difficult to summarise the influences to which is due the fact that in all the chief seats of population in Europe the labour-market is constantly thronged with men who are too badly reared and fed to be efficient labourers; who for this reason, and from the competition for employment with each other, have to sell their labour very cheap; who have thus seldom the means to save, and whose standard of living and social expectation is so low that, if they have the opportunity of saving, they do not use it, and keep bringing children into the world at a rate which perpetuates the evil. It is certain, however, that these influences have no necessary connection with the maintenance of the right of individual property and consequent unlimited accumulation of capital, though they no doubt are connected with that régime of force and conquest by which existing governments have been established,—governments which do not indeed create the rights of individual property, any more than other rights, but which serve to maintain them. It must always be borne in mind that the appropriation of land by individuals has in most countries—probably in all where it approaches completeness—been originally effected, not by the expenditure of labour or the results of labour on the land, but by force. The original landlords have been conquerors.
229. This has affected the condition of the industrial classes in at least two ways: (1) When the application of accumulated capital to any work in the way of mining or manufacture has created a demand for labour, the supply has been forthcoming from men whose ancestors, if not themselves, were trained in habits of serfdom; men whose life has been one of virtually forced labour, relieved by church—charities or the poor law (which in part took the place of these charities); who were thus in no condition to contract freely for the sale of their labour, and had nothing of that sense of family—responsibility which might have made them insist on having the chance of saving. Landless countrymen, whose ancestors were serfs, are the parents of the proletariate of great towns. (2) Rights have been allowed to landlords, incompatible with the true principle on which rights of property rest, and tending to interfere with the development of the proprietorial capacity in others. The right to freedom in unlimited acquisition of wealth, by means of labour and by means of the saving and successful application of the results of labour, does not imply the right of anyone to do as he likes with those gifts of nature, without which there would be nothing to spend labour upon. The earth is just as much an original natural material necessary to productive industry, as are air, light, and water, but while the latter from the nature of the case cannot be appropriated, the earth can be and has been. The only justification for this appropriation, as for any other, is that it contributes on the whole to social well-being; that the earth as appropriated by individuals under certain conditions becomes more serviceable to society as a whole, including those who are not proprietors of the soil, than if it were held in common. The justification disappears if these conditions are not observed; and from government having been chiefly in the hands of appropriators of the soil, they have not been duly observed. Landlords have been allowed to 'do what they would with their own,' as if land were merely like so much capital, admitting of indefinite extension. The capital gained by one is not taken from another, but one man cannot acquire more land without others having less; and though a growing reduction in the number of landlords is not necessarily a social evil, if it is compensated by the acquisition of other wealth on the part of those extruded from the soil, it is only not an evil if the landlord is prevented from so using his land as to make it unserviceable to the wants of men (e.g. by turning fertile land into a forest), and from taking liberties with it incompatible with the conditions of general freedom and health; e.g. by clearing out a village and leaving the people to pick up house-room as they can elsewhere (a practice common under the old poor-law, when the distinction between close and open villages grew up), or, on the other hand, by building houses in unhealthy places or of unhealthy structure, by stopping up means of communication, or forbidding the erection of dissenting chapels. In fact the restraints which the public interest requires to be placed on the use of land if individual property in it is to be allowed at all, have been pretty much ignored, while on the other hand, that full development of its resources, which individual ownership would naturally favour, has been interfered with by laws or customs which, in securing estates to certain families, have taken away the interest, and tied the hands, of the nominal owner—the tenant for life—in making the most of his property.
230. Thus the whole history of the ownership of land in Europe has been of a kind to lead to the agglomeration of a proletariate, neither holding nor seeking property, wherever a sudden demand has arisen for labour in mines or manufactures. This at any rate was the case down to the epoch of the French Revolution; and this, which brought to other countries deliverance from feudalism, left England, where feudalism had previously passed into unrestrained landlordism, almost untouched. And while those influences of feudalism and landlordism which tend to throw a shiftless population upon the centres of industry have been left unchecked, nothing till quite lately was done to give such a population a chance of bettering itself, when it had been brought together. Their health, housing, and schooling were unprovided for. They were left to be freely victimised by deleterious employments, foul air, and consequent craving for deleterious drinks. When we consider all this, we shall see the unfairness of laying on capitalism or the free development of individual wealth the blame which is really due to the arbitrary and violent manner in which rights over land have been acquired and exercised, and to the failure of the state to fulfil those functions which under a system of unlimited private ownership are necessary to maintain the conditions of a free life.
231. Whether, when those functions have been more fully recognised and executed, and when the needful control has been established in the public interest over the liberties which landlords may take in the use of their land, it would still be advisable to limit the right of bequest in regard to land, and establish a system of something like equal inheritance, is a question which cannot be answered on any absolute principle. It depends on circumstances. Probably the question should be answered differently in a country like France or Ireland, where the most important industries are connected directly with the soil, and in one like England where they are not so. The reasons must be cogent which could justify that interference with the control of the parent over his family, which seems to be implied in the limitation of the power of bequeathing land when the parent's wealth lies solely in land, and which arises, be it remembered, in a still more mischievous way from the present English practice of settling estates. But it is important to bear in mind that the question in regard to land stands on a different footing from that in regard to wealth generally, owing to the fact that land is a particular commodity limited in extent, from which alone can be derived the materials necessary to any industry whatever, on which men must find house-room if they are to find it at all, and over which they must pass in communicating with each other, however much water or even air may be used for that purpose. These are indeed not reasons for preventing private property in land or even free bequest of land, but they necessitate a special control over the exercise of rights of property in land, and it remains to be seen whether that control can be sufficiently established in a country where the power of great estates has not first been broken, as in France, by a law of equal inheritance.
232. To the proposal that 'unearned increment' in the value of the soil, as distinct from value produced by expenditure of labour and capital, should be appropriated by the state, though fair enough in itself, the great objection is that the relation between earned and unearned increment is so complicated, that a system of appropriating the latter to the state could scarcely be established without lessening the stimulus to the individual to make the most of the land, and thus ultimately lessening its serviceableness to society.
233. In the consideration of those rights which do not arise out of the existence of the state, but which are antecedent to it (though of course implying society in some form), and which it is its office to enforce, we now come to family or household rights—also called, though not very distinctively, rights in private relations—of which the most important are the reciprocal rights of husband and wife, parent and child. The distinctive thing about these is that they are not merely rights of one person as against all or some other persons over some thing, or to the performance of or abstention from some action; they are rights of one person as against all other persons to require or prevent a certain behaviour on the part of another. Right to free life is a right on the part of any and every person to claim from all other persons that course of action or forbearance which is necessary to his free life. It is a right against all the world, but not a right over any particular thing or person. A right of property, on the other hand, is a right against all the world, and also over a particular thing; a right to claim from any and every one certain actions and forbearances in respect of a particular thing (hence called 'jus in rem'). A right arising from contract, unlike the right of property or the right of free life, is not a right as against all the world, but a right as against a particular person or persons contracted with to claim a certain performance or forbearance. It may or may not be a right over a particular thing, but as it is not necessarily so, while it is a right against a particular person or persons in distinction from all the world, it is called 'jus in personam' as distinct from 'in rem.' The right of husband over wife and that of parent over children (orvice versa) differs from the right arising out of contract, inasmuch as it is not merely a right against the particular person contracted with, but a right against all the world. In this respect it corresponds to the right of property; but differs again from this, since it is not a right over a thing but over a person. It is a right to claim certain acts or forbearances from all other persons in respect of a particular person: or (more precisely) to claim a certain behaviour from a certain person, and at the same time to exclude all others from claiming it. Just because this kind of right is a right over a person, it is always reciprocal as between the person exercising it and the person over whom it is exercised. All rights are reciprocal as between the person exercising them and the person against whom they are exercised. My claim to the right of free life implies a like claim upon me on the part of those from whom I claim acts and forbearances necessary to my free life. My claim upon others in respect of the right of property, or upon a particular person in respect of an action which he has contracted to perform, implies the recognition of a corresponding claim upon me on the part of all persons or the particular party to the contract. But the right of a husband in regard to his wife not merely implies that all those as against whom he claims the right have a like claim against him, but that the wife over whom he asserts the right has a right, though not a precisely like right, over him. The same applies to the right of a father over a son, and of a master over a servant.
234. A German would express the peculiarity of the rights now under consideration by saying that, not only are persons the subjects of them, but persons are the objects of them. By the 'subject' of rights he would mean the person exercising them or to whom they belong; by 'object' that in respect of which the rights are exercised. The piece of land or goods which I own is the 'object' of the right of property, the particular action which one person contracts to perform for another is the 'object' of a right of contract; and in like manner the person from whom I have a right to claim certain behaviour, which excludes any right on the part of anyone else to claim such behaviour from him or her, is the 'object' of the right. But English writers commonly call that the subject of a right which the Germans would call the object. By the subject of a right of property they would not mean the person to whom the right belongs, but the thing over which, or in respect of which, the right exists. And in like manner, when a right is exercised over, or in respect of a person, such as a wife or a child, they would call that person, and not the person exercising the right, the subject of it. By the object of a right, on the other hand, they mean the action or forbearance which someone has a right to claim. The object of a right arising out of contract would be the action which the person contracting agrees to perform. The object of a connubial right would not be, as according to German usage, the person in regard to, or over, whom the right is exercised—that person would be the subject of the right—but either the behaviour which the person possessing the right is entitled to claim from that person, or the forbearances in respect to that person, which he is entitled to claim from others. (Austin, I. 378 and II. 736.) Either usage is justifiable in itself. The only matter of importance is not to confuse them. There is a convenience in expressing the peculiarity of family rights by saying, according to the sense of the terms adopted by German writers, that not only are persons subjects of them but persons are objects of them. It is in this sense that I shall use these terms, if at all.
235. So much for the peculiarity of family rights, as distinct from other rights. The distinction is not merely a formal one. From the fact that these rights have persons for their objects, there follow important results, as will appear, in regard to the true nature of the right, to the manner in which it should be exercised. The analytical, as distinct from the historical, questions which have to be raised with reference to family rights correspond to those raised with reference to rights of property. As we asked what in the nature of man made appropriation possible for him, so now we ask (1) what it is in the nature of man that makes him capable of family life. As we asked next how appropriations came to be so sanctioned by social recognition as to give rise to rights of property, so now we have to ask (2) how certain powers exercised by a man, certain exemptions which he enjoys from the interference of others, in his family life, come to be recognised as rights. And as we inquired further how far the actual institutions of property correspond with the idea of property as a right which for social good should be exercised, so now we have to inquire (3) into the proper adjustment of family rights, as determined by their idea; in what form these rights should be maintained; bearing in mind(a)that, like all rights, their value depends on their being conditions of which the general observance is necessary to a free morality, and __(b)__ their distinctive character as rights of which, in the sense explained, persons are the objects.
236. (1) We saw that appropriation of that kind which, when secured by a social power, becomes property, supposes an effort on the part of the individual to give reality to a conception of his own good, as a whole or as something permanent, in distinction from the mere effort to satisfy a want as it arises. The formation of family life supposes a like effort, but it also supposes that in the conception of his own good to which a man seeks to give reality there is included a conception of the well-being of others, connected with him by sexual relations or by relations which arise out of these. He must conceive of the well-being of these others as a permanent object bound up with his own, and the interest in it as thus conceived must be a motive to him over and above any succession of passing desires to obtain pleasure from, or give pleasure to, the others; otherwise there would be nothing to lead to the establishment of a household, in which the wants of the wife or wives are permanently provided for, in the management of which a more or less definite share is given to them (more definite, indeed, as approach is made to a monogamistic system, but not wholly absent anywhere where the wife is distinguished from the female), and upon which the children have a recognised claim for shelter and sustenance.
237. No doubt family life as we know it is an institution of gradual growth. It may be found in forms where it is easy to ignore the distinction between it and the life of beasts. It is possible that the human beings with whom it first began—beings 'human' because capable of it—may have been 'descended' from animals not capable of it, i.e. they may have been connected with such animals by certain processes of generation. But this makes no difference in the nature of the capacity itself, which is determined not by a past history but by its results, its functions, that of which it is a capacity. As the foundation of any family life, in the form in which we know it, implies that upon the mere sexual impulse there has supervened on the part of the man a permanent interest in a woman as a person with whom his own well-being is united, and a consequent interest in the children born of her, so in regard to every less perfect form out of which we can be entitled to say that the family life, as we know it, has developed, we must be also entitled to say that it expresses some interest which is in principle identical with that described, however incompletely it has emerged from lower influences.
238. (2) Such an interest being the basis of family relations, it is quite intelligible that everyone actuated by the interest should recognise, and be recognised by, everyone else to whom he ascribes an interest like his own, as entitled to behave towards the objects of the interest—towards his wife and children—in a manner from which everyone else is excluded; that there should thus come to be rights in family relations to a certain privacy in dealing with them; rights to deal with them as his alone and not another's; claims, ratified by the general sense of their admission being for the common good, to exercise certain powers and demand certain forbearances from others, in regard to wife and children. It is only indeed at an advanced stage of reflection that men learn to ascribe to other men, simply as men, the interests which they experience themselves; and hence it is at first only within narrow societies that men secure to each other the due privileges and privacies of family life. In others of the same kin or tribe they can habitually imagine an interest like that of which each feels his own family life to be the expression, and hence in them they spontaneously respect family rights; but they cannot thus practically think themselves into the position of a stranger, and hence towards him they do not observe the same restraints. They do not regard the women of another nation as sacred to the husbands and families of that nation. But that power of making another's good one's own, which in the more intense and individualised form is the basis of family relations, must always at the same time exist in that more diffused form in which it serves as the basis of a society held together by the recognition of a common good. Wherever, therefore, the family relations exist, there is sure to exist also a wider society which by its authority gives to the powers exercised in those relations the character of rights. By what process the relations of husband and wife and the institution of the household may have come to be formed among descendants of a single pair, it is impossible to conceive or to discover, but in fact we find no trace in primitive history of households except as constituents of a clan recognising a common origin; and it is by the customs of the clan, founded on the conception of a common good, that those forbearances on the part of members of one household in dealing with another, which are necessary to the privacy of the several households, are secured.
239. The history of the development of family life is the history of the process(a)by which family rights have come to be regarded as independent of the special custom of a clan and the special laws of a state, as rights which all men and women, as such, are entitled to. This, however, characterises the history of all rights alike. It is a history farther(b)of the process by which the true nature of these rights has come to be recognised, as rights over persons; rights of which persons are the objects, and which therefore imply reciprocal claims on the part of those over whom they are exercised and of those who exercise them. The establishment of monogamy, the abolition of 'patria potestas' in its various forms, the 'emancipation of women' (in the proper sense of the phrase), are involved in these two processes. The principles (1) that all men and all women are entitled to marry and form households, (2) that within the household the claims of the husband and wife are throughout reciprocal, cannot be realised without carrying with them not merely monogamy, but the removal of those faulty relations between men and women which survive in countries where monogamy is established by law.
240. Under a system of polygamy, just so far as it is carried out, there must be men who are debarred from marrying. It can only exist, indeed, alongside of a slavery, which excludes masses of men from the right of forming a family. Nor does the wife, under a polygamous system, though she ostensibly marries, form a household, or become the co-ordinate head of a family, at all. The husband alone is head of the family and has authority over the children. The wife, indeed, who for the time is the favourite, may practically share the authority, but even she has no equal and assured position. The 'consortium omnis vitae,' the 'individua vitae consuetudo,' which according to the definition in the Digest is an essential element in marriage, is not hers. [1] [2]
And further as the polygamous husband requires a self-restraint from his wife which he does not put on himself, he is treating her unequally. He demands a continence from her which, unless she is kept in the confinement of slavery, can only rest on the attachment of a person to a person and on a personal sense of duty, and at the same time is practically ignoring the demand, which this personal attachment on her part necessarily carries with it, that he should keep himself for her as she keeps herself for him. The recognition of children as having claims upon their parents reciprocal to those of the parents over them, equally involves the condemnation of polygamy. For these claims can only be duly satisfied, the responsibilities of father and mother towards the children (potentially persons) whom they have brought into the world can only be fulfilled, if father and mother jointly take part in the education of the children; if the children learn to love and obey father and mother as one authority. But if there is no permanent 'consortium vitae' of one husband with one wife, this joint authority over the children becomes impossible. The child, when its physical dependence on the mother is over, ceases to stand in any special relation to her. She has no recognised duties to him, or he to her. These lie between him and his father only, and just because the father's interests are divided between the children of many wives, and because these render their filial offices to the father separately, not to father and mother jointly, the true domestic training is lost.
[1] 'Nuptiae sunt conjunctio maris et feminae, consortium omnis vitae, divini et humani juris communicatio'Digest, xxiii. 2, 1. 'Matrimonium est viri et mulieris conjunctio individuam vita consuetudinem continens.' Inst., i.9.2. (Quoted by Trendelenburg,Naturrecht, p. 282.)
[2] [Latin consortium omnis vitae = partnership for life individua vitae consuetudo = unbroken companionship of life Tr]
241. Monogamy, however, may be established, and an advance so far made towards the establishment of a due reciprocity between husband and wife, as well as towards a fulfilment of the responsibilities incurred in bringing children into the world, while yet the true claims of men in respect of women, and of women in respect of men, and of children upon their parents, are far from being generally realised. Wherever slavery exists alongside of monogamy, on the one side people of the slave class are prevented from forming family ties, and on the other those people who are privileged to marry, though they are confined to one wife, are constantly tempted to be false to the true monogamistic idea by the opportunity of using women as chattels to minister to their pleasures. The wife is thus no more than an institution, invested with certain dignities and privileges, for the continuation of the family; a continuation, which under pagan religions is considered necessary for the maintenance of certain ceremonies, and to which among ourselves an importance is attached wholly unconnected with the personal affection of the man for the wife. [1] When slavery is abolished, and the title of all men and women equally to form families is established by law, the conception of the position of the wife necessarily rises. The ἑταίρα and παλλακή [2] cease at any rate to be recognised accompaniments of married life, and the claim of the wife upon the husband's fidelity, as reciprocal to his claim upon hers, becomes established by law.
[1] Her position among the Greeks is well illustrated by a passage from the speech of Demosthenes (?) against Neaera, Sect. 122 (quoted by W. E. Hearn,The Aryan Household, p. 71). τὰς μὲν γὰρ ἑταίρας ἡδονῆς ἕνεκʹ ἔχομεν, τὰς δὲ παλλακὰς τῆς καθʹ ἡμέραν θεραπείας του σώματος, τὰς δὲ γυναῖκας τοῦ παιδοποιεῖσθαι γνησίως καὶ τῶν ἔνδον φύλακα πιστὴν ἔχειν (tas men gar hetairas hedones henek echomen, tas de pallakas tes kath' hemeran therapeias tou somatos, tas de gynaikas tou paidopoieisthai gnesios kai ton endon phylaka pisten echein). [The query as to Demosthenes' authorship is in Green's text. Hearn translates this passage: Mistresses we keep for pleasure, concubines for daily attendance on our persons, wives to bear us legitimate children and to be our faithful housekeepers. Tr]
[2] [Greek ἑταίρα (hetaira) = courtesan, παλλακή (pallake) = concubine. Tr]
242. Thus that marriage should only be lawful with one wife, that it should be for life, that it should be terminable by the infidelity of either husband or wife, are rules of right; not of morality, as such, but of right. Without such rules the rights of the married persons are not maintained. Those outward conditions of family life would not be secured to them, which are necessary on the whole for the development of a free morality. Polygamy is a violation of the rights, (1) of those who through it are indirectly excluded from regular marriage, and thus from the moral education which results from this; (2) of the wife, who is morally lowered by exclusion from her proper position in the household and by being used, more or less, as the mere instrument of the husband's pleasure; (3) of the children, who lose the chance of that full moral training which depends on the connected action of father and mother. The terminability of marriage at the pleasure of one of the parties to it (of its terminability at the desire of both we will speak presently) is a violation of the rights at any rate of the unconsenting party, on the grounds(a)that liability to it tends to prevent marriage from becoming that 'individua vitae consuetudo' which gives it its moral value, and(b)that, when the marriage is dissolved, the woman, just in proportion to her capacity for self-devotion and the degree to which she has devoted herself to her original husband, is debarred from forming that 'individua vitae consuetudo' again, and thus crippled in her moral possibilities. It is a violation of the rights of children for the same reason for which polygamy is so.
On the other hand, that the wife should be bound indissolubly by the marriage-tie to an unfaithful husband (orvice versa), is a violation of the right of wife (or husband, as the case may be), because on the one hand the restraint which makes her liable to be used physically as the instrument of the husband's pleasures, when there is no longer reciprocal devotion between them, is a restraint which (except in peculiar cases) renders moral elevation impossible; and on the other, she is prevented from forming such a true marriage as would be, according to ordinary rules, the condition of the realisation of her moral capacities. Though the husband's right to divorce from an unfaithful wife has been much more thoroughly recognised than the wife's to divorce from an unfaithful husband, he would be in fact less seriously wronged by the inability to obtain a divorce, for it is only the second of the grounds just stated that fully applies to him. The rights of the children do not seem so plainly concerned in the dissolution of a marriage to which husband or wife has been unfaithful. In some cases the best chance for them might seem to lie in the infidelities being condoned and an outward family peace re-established. But that their rights are violated by the infidelity itself is plain. In the most definite way it detracts from their possibilities of goodness. Without any consent on their part, quite independently of any action of their own will, they are placed by it in a position which tends—though special grace may counteract it—to put the higher kinds of goodness beyond their reach.
243. These considerations suggest some further questions which may be discussed under the following heads. (1) If infidelity in marriage is a violation of rights in the manner stated, and if (as it must be) it is a wilful and knowing violation, why is it not treated as a crime, and, like other such violations of rights, punished by the state in order to the better maintenance of rights? (2) Should any other reason but the infidelity of husband or wife be allowed for the legal dissolution of the marriage-tie? (3) How are the rights connected with marriage related to the morality of marriage?
(1) There is good reason why the state should not take upon itself to institute charges of adultery, but leave them to be instituted by the individuals whose rights the adultery violates. The reasons ordinarily alleged would be,(a)the analogy of ordinary breaches of contract, against which the state leaves it to the individual injured to set the law in motion;(b)the practical impossibility of preventing adultery through the action of the functionaries of the state. The analogy, however, from ordinary breaches of contract does not really hold. In the first place, though marriage involves contract, though without contract there can be no marriage, yet marriage at once gives rise to rights and obligations of a kind which cannot arise out of contract, in particular to obligations towards the children born of the marriage. These children, at any rate, are in no condition to seek redress—even if from the nature of the case redress could be had—for the injuries inflicted on them by a parent's adultery, as a person injured by a breach of contract can seek redress for it. Again, though the state leaves it to the individual injured by a breach of contract to institute proceedings for redress, if the breach involves fraud, it, at any rate in certain cases, treats the fraud as a crime and punishes. Now in every breach of the marriage-contract by adultery there is that which answers to fraud in the case of ordinary breach of contract. The marriage-contract is broken knowingly and intentionally. If there were no reason to the contrary, then, it would seem that the state, though it might leave to the injured individuals the institution of proceedings against adultery, should yet treat adultery as a crime and seek to prevent it by punishment in the interest of those whose virtual rights are violated by it, though not in the way of breach of contract. But there are reasons to the contrary—reasons that arise out of the moral purposes served by the marriage-tie—which make it desirable both that it should be at the discretion of the directly injured party whether a case of adultery should be judicially dealt with at all, and that in no case should penal terror be associated with such a violation of the marriage-bond Under ordinary conditions, it is a public injury that a violation of his rights should be condoned by the person suffering it. If the injured individual were likely to fail in the institution of proceedings for his own redress or defence, the public interest would require that the matter should be taken out of his hands. But if an injured wife or husband is willing to condone a breach of his or her rights through adultery, it is generally best that it should be condoned. That married life should be continued in spite of anything like dissoluteness on the part of husband or wife, is no doubt undesirable. The moral purposes which married life should serve cannot be served, either for the married persons themselves or for the children, under such conditions. On the other hand, the condonation of a single offence would generally be better for all concerned than an application for divorce. The line cannot be drawn at which, with a view to the higher ends which marriage should serve, divorce becomes desirable. It is therefore best that the state, while uniformly allowing the right of divorce where the marriage-bond has been broken by adultery (since otherwise the right of everyone to form a true marriage, a marriage which shall be the basis of family life, is neutralised,) and taking care that procedure for divorce be cheap and easy, should leave the enforcement of the right to the discretion of individuals.
244. On similar grounds, it is undesirable that adultery as such should be treated as a crime, that penal terror should be associated with it. Though rights, in the strict sense, undoubtedly arise out of marriage, though marriage has thus its strictly legal aspect, it is undesirable that this legal aspect should become prominent. It may suffer in respect of its higher moral purposes, if the element of force appears too strongly in the maintenance of the rights to which it gives rise. If a husband who would otherwise be false to the marriage-bond is kept outwardly faithful to it by fear of the punishment which might attend its breach, the right of the wife and children is indeed so far protected, but is anything gained for those moral ends, for the sake of which the maintenance of these rights is alone of value? The man in whom disloyal passion is neutralised by fear of punishment will contribute little in his family life to the moral development of himself, his wife, or his children. If he cannot be kept true by family affection and sympathy with the social disapprobation attaching to matrimonial infidelity (and unless it is a matter of social disapprobation no penalties will be effectually enforced against it), he will not be kept true in a way that is of any value to those concerned by fear of penalties. In other words, the rights that arise out of marriage are not of a kind which can in their essence be protected by associating penal terror with their violation, as the rights of life and property can be. They are not rights to claim mere forbearances or to claim the performance of certain outward actions, by which a right is satisfied irrespectively of the disposition with which the act is done. They are claims which cannot be met without a certain disposition on the part of the person upon whom the claim rests, and that disposition cannot be enforced. The attempt to enforce the outward behaviour in order to satisfy the claim, which is a claim not to the outward behaviour merely but to this in connection with a certain disposition, defeats its own end.
245. For the protection, therefore, of the rights of married persons and their children against infidelity, it does not appear that the law can do more than secure facilities of divorce in the case of adultery. This indeed is not in itself a protection against the wrong involved in adultery, but rather a deliverance from the further wrong to the injured husband or wife and to the children that would be involved in the continuance of any legal claim over them on the part of the injurer. But indirectly it helps to prevent the wrong being done by bringing social disapprobation to bear on cases of infidelity, and thus helping to keep married persons faithful through sympathy with the disapprobation of which they feel that they would be the objects when they imagine themselves unfaithful. The only other effectual way in which the state can guard against the injuries in question is by requiring great precaution and solemnity in the contraction of marriages. This it can do by insisting on the consent of parents to the marriage of all minors, exacting a long notice (perhaps even a preliminary notice of betrothal), and, while not preventing civil marriage, by encouraging the celebration of marriage in the presence of religious congregations and with religious rites.
246. Question (2) is one that does not admit of being answered on any absolute principle We must bear in mind that all rights—in idea or as they should be—are relative to moral ends. The ground for securing to individuals in respect of the marriage-tie certain powers as rights, is that in a general way they are necessary to the possibility of a morally good life, either directly to the persons exercising them or to their children. The more completely marriage is a 'consortium omnis vitae' in the sense of a unity in all interests and for the whole of a lifetime, the more likely are the external conditions of a moral life to be fulfilled in regard both to married persons and their children. Therefore the general rule of the state in dealing with marriage should be to secure such powers as are favourable and withhold such as are not favourable to the 'consortium omnis vitae.' But in the application of the principle great difficulties arise. Lunacy may clearly render the 'consortium omnis vitae' finally impossible; but what kind and degree of lunacy? If the lunatic may possibly recover, though there is undoubtedly reason for the separation from husband or wife during lunacy, should permanent divorce be allowed? If it is allowed, and the lunatic recovers, a wrong will have been done both to him and to the children previously born of the marriage. On the other hand, to reserve the connubial rights of a lunatic of whose recovery there is hope, and to restore them when he recovers, may involve the wrong of bringing further children into the world with the taint of lunacy upon them. Is cruelty to be a ground of divorce, and if so, what amount? There is a degree of persistent cruelty which renders 'consortium omnis vitae' impossible, but unless it is certain that cruelty has reached the point at which a restoration of any sort of family life becomes impossible, a greater wrong both to wife and children may be involved in allowing divorce than in refusing it. A husband impatient for the time of the restraint of marriage may be tempted to passing cruelty as a means of ridding himself of it, while if no such escape were open to him he might get the better of the temporary disturbing passion and settle down into a decent husband. The same consideration applies still more strongly to allowing incompatibility of temper as a ground of divorce. It would be hard to deny that it might be of a degree and kind in which it so destroyed the possibility of 'consortium omnis vitae,' that, with a view to the interests of the children, who ought in such a case to be chiefly considered, divorce implied less wrong than the maintenance of the marriage-tie. But on the other hand, to hold out the possibility of divorce on the ground of incompatibility is just the way to generate that incompatibility. On the whole, the only conclusion seems to be that this last ground should not be allowed, and that in deciding on other grounds large discretion should be allowed to a well-constituted court.