As to the themes on which the pen should be exercised, good sense, inclination, and opportunity must dictate. Next to the peace of a good conscience, a healthy, well-ordered, selfcultured mind is the highest blessing which man is permitted to enjoy in this state of existence; and if any reader of 'Meliora' profit by these brief hints towards the attainment of such a blessing, the intention of the writer will be accomplished.

ART. II.-PRIVATE RIGHTS v. SOCIAL RIGHTS.

'I

HAVE a right to,' 'you have no right to,' are the formulæ which briefly express the contest that is ever going on between the individual on the one side, and society on the other. In a state of savage life, the former largely predominates over the latter. The whole tendency of civilisation is to make society supreme over the individual. It has been well said by an eminent lawyer, 'All legislation is the restriction of liberty.' The tendency of all law is to deprive man of his natural rights (using the word 'natural' here in its strictly etymological sense, to signify rights accruing at birth). Thus a Robinson Crusoe, living alone, has unlimited rights. He may take all he sees. He may fire his gun in what direction he pleases. He may take the life of any living creature. In short, he owes no allegiance to society, and society has no right to restrict him in any respect. But no sooner does Man Friday land on his desolate island, than Crusoe's rights begin to be restricted. He may no longer fire his gun in any direction he pleases, viz., for instance, where Man Friday stands or walks. He may no longer take the life of every living creature, viz., of Man Friday himself; and no sooner does Man Friday gather of the fruits of the land for his food, or bring up the shellfish from the rocks, or with a stone knock over the birds, than Crusoe's rights become further restricted. He may no longer take everything he sees; he may not take either fruit, fish, or fowl, that Friday, by labour expended on them, has made his own. So, if Man Friday fish up a hatchet from the wreck, or gain it by barter from Robinson Crusoe himself, Crusoe may not take that. He must respect Friday's life and Friday's property; and thus he finds his own rights are every day becoming more and more restricted. Of course, reciprocally, Friday finds his previous rights restricted also, and thus here we have the

germ

germ of society; and in the restrictions that the rights of each exercise over the other, we have the first buddings of what throughout this paper will be termed 'social rights.'

Take now the first remove into a semi-civilised life, from the joint empire of Crusoe and Man Friday; take the case of wandering Mongols, Tartars, Arabs, or Red Indians. Even they, with their individual rights much less restricted than ours are in the perhaps overdone civilisation of the west, yet have to concede much that Robinson Crusoe still retains. For instance, with them, the individual rights must yield to the interests of the tribe. With them, a man may not gratify his revenge in a private feud with one of another tribe that may happen to be friendly with his own. He may make war, not how and with whom he likes, but only subject to the will of his chief. And many other like restrictions are laid on his individual liberty or private rights.

Shifting the scene again to a more populous district-a farmer, living far away from other houses, though restricted in his rights to the same extent as Crusoe, yet retains the right (allowed at least) of having his heap of farmyard manure in immediate contiguity to his farmhouse. But let him live near a populous village, or in a large hamlet even, and straightway this right, too, is interfered with. He is told that the health of his neighbours is considered to be injuriously affected by the exhalations from what he esteems his healthy-smelling farmyard, and in spite of protests he is compelled to remove the manure to a greater distance.

The very idea, then, of society implies compromise. All government is based upon compromise. Almost all legislation is but the adjustment of compromises between the rights of man as an individual, and the necessities of man as a social being.

The question then arises, Is there any limit to the restrictions that society has a right to lay on the rights of individuals? Undoubtedly there is a limit. The exact line of it may be difficult, nay, perhaps impossible to define. Let us, however, endeavour to clear away such uncertainties, such mists of doubt as are removable, and see whether we cannot approximate to the true line of limitation.

To all our readers will probably at once occur, at the very outset, the question of that liberty of action which the individual claims on the ground of religious faith or conviction. Not that all individual action which is grounded on religious conviction is necessarily to be allowed by society. No. Where the moral sense of the community is outraged by the action done on religious grounds by the individual, then society steps in,

has

has a right to step in, and prohibits, and has a right to prohibit, that action. For instance, Sutteeism is a rite practised from religious conviction; so is the worship of Juggernaut, and the self-immolation of his victims. But nobody will contend that in these cases, even though the moral sense of but a very small portion of the community was outraged by these acts, it was wrong for society, represented by the Government, to put down those practices. On the other hand, in these days of religious toleration, it can hardly be necessary seriously to argue that society has no right to interfere with a man's individual right to worship, or not to worship, as his conscience may direct, provided that the moral sense of society be not outraged by the mode of that worship. The old Roman Empire, it is true, held that even such individual rights must succumb to the will of the State; but such sentiments are all but obsolete at the present day.

Individual religious rights being, then, thus guarded with such reservation as already named, is there any other natural right which society has not the right to suppress (if it considers it has good cause for doing so)? We think there is.

The ancient communities believed that if they wished to inflict capital punishment, they had a right, if they chose, to starve the culprit to death;-that is to say, they held that under certain circumstances they had a right to withhold from him to the utmost the absolute necessaries of life. With this they also claimed the right to put to death by the slowest and most torturing methods. Such a claim at the present day would outrage our moral nature, and we, therefore, cannot conscientiously claim this right for society. It would appear, then, that society has not the right to deny to a man the right of physical sustenance. Society as a whole does, however, yet reserve to itself the option of taking away life under certain circumstances; but whether even that is a right is beginning to be questioned by a large section of this nation.

Has society a right to withhold liberty of the person? Under certain circumstances that is granted. If an individual commits a crime against society, society claims, and has a right to claim, the right of taking from that individual his natural right of freedom of person. Under similar circumstances society has a right to inflict corporal punishment. It may also fine him; it has, then, the right of taking away an individual's property.

We appear, thus, to attain this point, that if the individual transgresses the laws laid down by society, then society has a right to withdraw any natural right from an individual, with these limitations:-1. Such religious rights as can be exercised

without

without outraging the moral sense of society; 2. Perhaps, the taking away of that which is beyond the power of society to restore, viz., life; and, 3, certainly the option of arriving at that result by means of unnecessary bodily or mental torture.

Next, then, comes the question, To what extent has society the right to lay down laws so restricting the liberty of the individual, that by the breaking of them he becomes liable to such pains and penalties as are here admitted as allowable to be inflicted on him? We need not reiterate here what has been said about religious rights. Those remarks apply equally to the present part of the discussion. As to other questions, society would seem to have no right to enact such laws as shall have the inevitable result of taking away or shortening life. It would appear that, under very extraordinary circumstances, it has the right temporarily to withdraw the individual right of liberty of person, even without offence committed against the law, if such a step appear to be necessary for the safety of the community. This right of society is politically expressed by saying that society has the right to suspend the Habeas Corpus Act.' No such extraordinary circumstances would, however, appear to give society the right of intentionally inflicting bodily pain (such as corporal punishment), or of taking away an individual's property, i.e., without offence having been proved.

6

Has then society, in the next place, the right to prevent a man from intentionally taking away his own life? Undoubtedly society has to this extent the right to protect its own members from themselves.

Has society the right to prevent a man from taking that into his body which will almost certainly at once end his life? Surely no one will doubt that it has. At all events we live in a society that claims that right. It will, if it can, prevent a man from taking immediate death-poison.

Has society the right to prevent the individual. from doing that which is likely to, or has been found to, injure the health, or take the life of another, although such act has no such evil intention?

Undoubtedly. As we showed at the first, a farmer may not injuriously affect the health of his neighbours by the effluvia from his manure. A merchant may not with indifference allow the sewage from his suburban villa to flow into the midst of a surrounding population, there to develop disease, and encourage death. A chemical manufacturer may not injure the health of a neighbourhood by the emanations from his chemical works. The natural rights of each are interfered with by society for the protection of its members.

Again, a good many years ago, it was found that quarrels frequently terminated fatally, in consequence of the foolish practice then prevailing of gentlemen always wearing a sword as part of their ordinary dress; that when the blood got warm the sword suddenly flashed forth, and some paltry quarrel, to the dismay of all parties, ended in one of the duellists losing his life. Society deemed it right and wise to interfere, and our almánacks chronicle the fact in the two words, 'Swords forbid.' So in this case, though the wearing of a sword was apparently a harmless fancy, and was by no means necessarily followed even by the use of it, still less by fatal or even injurious consequences, yet it was judged a not unconstitutional interference with the liberty of the subject to prohibit the indulgence in this piece of foolish vanity in dress.

May an individual, in the exercise of his natural rights, unintentionally injure the property of his neighbour, and may society interfere to prevent him? Undoubtedly it may. If I have planted a garden, and my neighbour build a chemica works, and by the gases therefrom kill my shrubs, society has a right to interfere to protect my property. If I have undertaken pisciculture, and a gas company turn the refuse of its works into the stream, and kill the fish I have reared, society has a right, if called on by me, to interfere and prevent those people from unintentionally destroying my property.

If a man so use his property that he himself, or his family whom he by natural laws is bound to maintain, become, in consequence of such use of his property, chargeable upon society, is society bound to allow such use and bear such charge in silence? Or has it the right to prohibit such action that it may avoid such charge? At first sight one would say, undoubtedly society has such right; and probably such an answer is correct.

It may, however, be suggested that if this be the case, then if a man speculates in the funds, or in shares, society must have the right to step in and say, You must not do so; if you lose that property, you have neither the health nor the skill to maintain, without cost to us, yourself and those dependent on you, and therefore you must not so use your property as to run the risk of such an eventuality occurring.

As we have said, probably it would be quite correct to reply that, in the abstract, society has a right to take such a position; but while the right may be there, it may not be wise or expedient, or even possible, to act upon it.

Thus, for instance, society seldom knows when such a course is being adopted by the individual, and to take steps to know would probably have the effect of making the remedy

worse