THE STATE AND THE EIGHTH COMMANDMENT. [TO THE EDITOR OF
THE " SPECTATOR."'
Sin,—Perhaps the controversy between the Spectator and Mr. Llewelyn Davies in respect of the rights of the State over individual property may be in part cleared up by definition.
Mr. Davies's argument is dominated throughout, though confusedly, by a legal conception ; the Spectator's by a moral; the word " right " being used in different senses.
Mr. Davies, though he is not consistent, says in the main: The State has a right to take what property it pleases ;" adding, "provided it gives equitable compensation." He says, moreover, that an individual owner has no right to call such State action a crime.
The Spectator, on the other hand, contends that a man has many indefeasible rights against the State. For example, that arbitrary confiscation of Lord Holland's property, or the violation of the religious liberty of any individual, would be the violation of rights.
Now, the term " right " is a term properly legal, which, with other legal terms, is sometimes used in a moral sense. Legally and politically it implies—(l), a claim ; (2), the recognition of that claim ; (3), the existence of an absolute power to enforce that claim. The recognition of a legal claim is made and enforced by the law of the State, which emanates from the legal Sovereign of the State. The legal Sovereign in this country is Parliament. Against sovereign power there can be no rights, for the sanction of the sovereign power, by the above definition, is itself essential to the existence of a right. Therefore, there is no individual or body of individuals in this country with any legal right whatever, whether to religions liberty or to life, against the express will of Parliament.
Conversely, it is absurd to speak of the legal rights of the sovereign power, for that implies an external recognition such as the Sovereign itself alone can make.
Mr. Davies, therefore, in so far as he argued for the absolute power of the State to confiscate property, was legally correct. But in adding, "provided it gives equitable compensation," he strays into a wholly different field. Equity in the moral sense has nothing to do with this legal matter. If it had, the individual forcibly dispossessed would be justified in calling such act of the State "a crime." For we now enter the field of morals. The word " right " is also used, though more vaguely, in a moral sense. In this sense, it has the same threefold implication of a claim, a recognition and enforcement of that claim by a sovereign power. But the word is vaguer because in this sphere the sovereign power, though existent, is less easily definable. This moral (or social) Sovereign, as it -may be called, consists of the sum of moral forces of society, including reason- ings, beliefs, customs, and superstitions of every kind. Its
notion, though final, is often slow and not easily demonstrable. In so far as this vague moral or social Sovereign (on which the legal Sovereign, though absolute in the legal sphere, is itself ultimately dependent), I say, in so far as this moral power recognises and, in its fashion, enforces a moral claim, just so far can there be said to be a moral right established. And among the moral claims which the moral or social Sovereign of this country has recognised, are those of an innocent man to his own life; the free exercise of his religions faith, and, in the main, to the use and bequest of his property.
Nevertheless, should the legal Sovereign (which, inspired by the moral Sovereign, has gradually recognised these claims also), determine to deny them, they would cease to be legal rights, although they might continue to be moral rights.—I am, Sir, &c.,
[We are contending only for moral rights. Nobody ever disputed that Parliament could legally execute an innocent man—ED. Spectator.]
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