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§ 30. The exercise of liberty or free action, in the sense just indicated, often suffers restrictions that diminish it, even to annihilation. Neglecting impossibilities and impersonal difficulties, we shall consider only those restraints that arise from the conflict of other wills.

One person may effectively interfere with the liberty of another by using his own muscular force, either directly or by setting obstacles to bar the way. The man thus assailed may be overpowered by stronger handling, and be fettered or imprisoned. Also he may be beset and embarrassed in his taking or keeping possession of property, in producing and imparting. Also any withdrawing or withholding of means which he might use to attain a chosen end, is an interference with his liberty. Such external interferences may occur in an infinite variety of ways, and are cases of causal determination.

§ 31. There is, however, a secondary sense, even more important and perhaps more frequent, of the use of the term liberty, in which it signifies the absence, not merely of causal restriction, but also of any inducement presented to one inclining him otherwise than he, if unassailed, would be disposed. When influences that are not causes are brought to bear on a man pressing him to choose otherwise than he would, modifying and sometimes reversing his original and characteristic preferences, this is properly regarded as a restriction of his liberty.

The process becomes clear upon a little consideration. The power of choice is obviously conditioned on cognition. There must be an idea of an action, and of its possible alternate. A judgment is rendered between these, and the choice accords with the weightier reason. Reasons are not causes. A man may be influenced in his choice by them without loss as to his personality, and indeed his every choice is subject

to rational determination.

The reasons for one alternative

are more influential than those for the other, and he freely, of himself, chooses the former. It is not at all requisite that the prevailing reasons should be what might be called good reasons; they may be very bad, poor, trifling, or even absurd reasons; nevertheless they are the rational determinants with which the choice accords.1

Now, a man may not effect, but he may affect another's choice by presenting such reasons as shall operate through the desires to influence his course. This is done obviously by argument; also one obviously influences by persuasion the decisions and conduct of his fellows. Even greater in extent is the influence of instruction, as in the education of children. Indeed, in the whole process of education, we influence powerfully the general disposition, character, and course through life of other persons, thus putting permanent restraints upon their liberty. So also in social and political relations, and in religion, restraining influences, or interferences with liberty, are constantly exerted by the presentation of reasons.

Another way of embarrassing the will, and so checking liberty, is by reason of threatened harm, as seen particularly in the penalties of the law. The police, the court and the penitentiary offer a constant reason for conformity to law. The footpad, who presents the alternative of your money or your life, thereby proposes a reason usually sufficient to determine in favor of yielding the purse. A plea of duress is allowed by the courts in discharge of engagement, or in mitigation of penalty. Any menace inspiring apprehension interferes with liberty, changing the preferable direction of

1 See supra, § 10, note. Reasons are causæ efficiens cognoscendi, but are not at all causæ efficiens essendi. They should be clearly distinguished from the latter class, which is the usual meaning of the unqualified term cause. For the several kinds of causes see Elements of Inductive Logic, § 14, note.

action, or diminishing its range, without bringing to naught the possible alternative. The weightiest examples of such interference are to be found in political oppression, in religious persecution, and still more generally in war.1

§ 32. An important distinction now to be made is between those interferences, both external and internal, that are warránted and those that are unwarranted.

The state warrants its officers in the arrest and imprisonment, and even in the execution of offenders against its laws. It warrants the seizure of goods to satisfy judgments, the confiscation of private property for public weal, the levying of taxes for its own support, the conscription of citizens for military service, the bondage of a class as serfs or slaves. Also by stringent enactments it regulates industry in production and trade, restricts marriage and divorce, inheritance and bequest, and provides compulsory education. These and many other restraints on the original liberties of its subjects it imposes, and enforces, if need be, with a strong arm. Aside from those enjoined by the state, there are many formal restraints in the common intercourse of men which are warranted by social relations. To these may be added restraints within the family circle, especially those arising from the exercise of parental authority.

The foregoing restrictions of liberty are unavoidable. One may approve of and willingly comply with them, but his consent is not asked; he can neither refuse to accept them, nor escape by renouncing them. But there are also many avoidable restraints that exist by consent, as in contracts, promises, marriage, and membership in clubs, societies, institutions and

1 The legal definition of duress is "the state of moral compulsion or necessity in which a person is induced, by unlawful restraint of his liberty or actual or threatened violence, to make a deed or contract or to fulfil one, or to commit a misdemeanor." See Elements of Psychology, § 273, note.

churches, whose requisitions are warranted by being legitimate and voluntarily conceded.

Very grave questions arise, and will be subsequently considered, respecting the ground of the warrant or right to bind. It is sufficient here to observe that the occasion and extent of warranted interference is determined by the relative rights of the parties. Granting the warrant in the various cases cited, it is evident that they represent a large and distinct class of restrictions in the range of personal liberty.

It seems, then, that every man is surrounded by legitimate checks on action, having warrant in the rights of others to whom he is personally related. He cannot transgress a certain circumscribed bound without infringing on their privileges, and he is debarred from doing so, as far as practicable, by their conflicting wills. Thus by the rights of others everyone's rights are limited. But within the limits thus set, any willful restraint upon one's liberty of action, either external or internal, being ex vi termini unwarranted, is a violation of his ultimate constitutional right to a free use of his powers in the gratification of his normal desires. On this class of interferences we proceed to bestow special consideration.

CHAPTER III

TRESPASS

§ 33. Having considered certain conditions and limitations of rights, we are now prepared to examine more particularly the basis and origin of the notion, together with certain other conditions, correlates and implications that mark the limits of interference in liberty.

The notion of a right, being pure and simple, is incapable of logical definition. Like all other pure notions it is immediately discerned upon an empirical occasion. The occasion for this intuition is the experience of a personal relation. It is a matter of common observation that we all stand in various and dissimilar relations to other sentient beings, as of man to man in reciprocal parity, of parent to child, of benefactor to beneficiary, of ruler to subject, and many others. Now, so soon as a human mind apprehends a relation between two persons, whether the observer be one of the parties or not, upon that occasion it immediately discerns the concomitant existence of mutual rights. Their special character and extent is not immediately discerned, but only that they exist.

The character and extent of the rights discerned are determined by the kind and intimacy of the relation between the parties. Whenever we undertake to pass moral judg ment on any action, we examine and reflect upon the relation sustained by the persons concerned, and make this the basis of the judgment, approving or disapproving, mildly or strongly, as the case may be. We judge that a benefactor has a right to the gratitude of his rightful beneficiary; that

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