259 



against it can, therefore, be drawn from experience. The suffering and oppression 

 among operatives is generally cited as an illustration of the unsatisfactory workings of 

 the doctrine. But in reality they are the victims of power in a large measure created by 

 artiflc'ial political arrangements. To bring the State under the full operation of the doc- 

 trine, it would be necessary to repudiate, or at least to essentially modify, the existing 

 policy of the State with reference to the following subjects, viz., contracts, and especially 

 coMtracts for the payment of interest, patent and copyright laws, corporations, taxation 

 and other subjects. 



Thus, with regard to usury, or interest, there is an almost imiversal consensus of 

 opinion in favor of allowing it, and I do not mean to say either that I am, or that I am 

 not, of a different opinion ; but certainly the arguments which have been advanced in its 

 support, and which have served to convince the world, are very far from being 

 satisfactory. 



The celebrated argumentof Bentham, which is regarde 1 as having settled the question, 

 is even childish in its simplicity. Briefly, it i.s " tliat no man of ripe years and of sound 

 mind, acting freely and with his eyes open, ought to be hindered, with a view to his 

 advantage, from making such bargains iu the way of obtaining money as he thinks fit." 



And he adds : 



" Were it any individual antagonist I had to deal with, my part would be a smooth and 

 easy one : ' You who fetter contracts, you who lay restraints on the liberty of man, it is 

 for you, I should say, to assign a reason for your doing so.' That coitracts in general 

 ought to be observed is a rule no man was ever yet found wrong headed enough to 

 deny," etc. {Defense oj Usury, Introduction). 



But obviously Bentham here mistakesthe issue, and it is he who is arguing in restraint 

 of liberty ; for his thesis is, not that men ought to be peroiiited to agree to pay interests, 

 but that the State ought to compel him to do so ; and he in fact assumes as his first prin- 

 ciple that all contrar-ts should be enforced. But, as observed elsewhere, there is no such 

 principle— taking the proposition universally — known to the law, or to right (v. infra, 

 pp. 140, 141), and the question presented in this and all other cases of contract is whether 

 the force of the State ought to be used. 



With regard to taxation, omitting the other subjects referred to, the power of taxing, 

 both as to amount and as to kind of taxation, is unlimited, and the power is used, not 

 simply for the purpose of providing for the necessary expenses of the goveriimeut — its 

 only legitimate object— but for the purpose of so-called protection, and other equally 

 illegitimate purposes ; and it is impossible to calculate what efFdCt this has had upon the 

 inequalities of condition in the body politic. 



(d) We quote this from Mr. Coleridge, who uses it to emphasize his own experience of 

 " the extreme shallowness and ignorance with which men, of some note, too, were able, 

 after a certain fashion, to carry on the government of independent departments of the 

 empire" {Table Talk, London, George Routledge & Sons, p. 194). 



(e) This is well expressed by Amos: "The generic expression which denotes, for any 

 given age or country, the exact measure of personal liberty for every man, which supplies 

 the most favorable conditions for the highest possible development of all, is rights" ( The 

 Science of Law, p. 91). And this seems to agree with the view of Krause, or rather of his 

 Spanish translator, Sauz del Rio : " Right requires that all men shall give and receive 

 mutually and iu social form, every condition necessary for the fulfillment of their 

 destiny, individual and social." "The idea of right .... looks to the totality of human 

 ends, and the conditionality thus imposed on man as itself an end " {Ideal de la Humaiu- 

 dad, p. 48). 



(/) Mr. Ahrens, in reviewing the principal theories as to the end of the State, distri- 

 butes them into three grand categories, the names of which— for lack of ability to trans- 

 late them satisfactorily to myself— I give in the original, namely, " la theorie d'unitiS, les 

 theories partielles, et la doctrine harmonique." 



The first theory is that which confounds the end of the State (by which it will be 

 understood Mr. Ahrens means the organized State, or government, or the political order) 



