From whatever point of view we consider it, Bentham's proposition proves to be unthinkable. Government, he says, fulfills its office "by creating rights." Two meanings may be given to the word "creating." It may be supposed to mean the production of something out of nothing; or it may be supposed to mean the giving form and structure to something which already exists. There are many who think the production of something out of nothing can not be conceived as effected even by Omnipotence; and probably none will assert that the production of something out of nothing is within the competence of a human government. The alternative conception is that such human government creates only in the sense that it shapes something pre-existing. In that case, the question arises, "What is the something pre-existing which it shapes?" Clearly the word "creating" begs the whole question—passes off an illusion upon the unwary reader. Bentham was a stickler for definiteness of expression, and in his "Book of Fallacies" has a chapter on "Impostor-terms." It is curious that he should have furnished so striking an illustration of the perverted belief which an impostor-term may generate.
But now let us overlook these various impossibilities of thought, and seek the most defensible interpretation of Bentham's view.
It may be said that the totality of all possessions, powers, rights, originally existed as an undivided whole in the sovereign people; and that this undivided whole is given in trust (as Austin would say) to a ruling power, appointed by the sovereign people, for the purpose of distribution. If, as we have seen, the proposition that rights are created is simply a figure of speech, then the only intelligible construction of Bentham's view is that a multitude of individuals, who severally wish to satisfy their desires, and have, as an aggregate, possession of all the sources of satisfaction, as well as power over all individual actions, appoint a government, which declares the ways in which, and the conditions under which, individual actions may be carried on and the satisfactions obtained. Let us observe what are the implications. Each man exists in two capacities. In his private capacity he is subject to the government. In his public capacity he is one of the sovereign people who appoint the government. That is to say, in his private capacity he is one of those to whom rights are given; and in his public capacity he is one of those who, through their agency, give the rights. Turn this abstract statement into a concrete statement, and see what it means. Let the community consist of a million men, who, by the hypothesis, are not only joint possessors of the inhabited region, but joint possessors of all liberties of action and appropriation: the only right recognized being that of the aggregate to everything. What follows? Each person, while not owning any product of his own labor, has, as a unit in the sovereign body, a millionth part of the ownership of the products of all others' labor. This is an unavoidable implication. No body of men can confer that which it has not
