Front Page Titles (by Subject) CHAPTER I: duties of the state - Law in a Free State
The Online Library of Liberty
A project of Liberty Fund, Inc.
CHAPTER I: duties of the state - Wordsworth Donisthorpe, Law in a Free State 
Law in a Free State (London: Macmillan and Co., 1895).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
duties of the state
It is sometimes said that the system of party government is on its trial in this country. Not at all. It is not denied that it has worked well so far; that it has saved English institutions from democratic imperialism; and that no other system known to the historian is capable of doing this. Yet it is asserted that, for some reason or another, the system has reached its highest development, and even passed its zenith; that it no longer serves any useful purpose; and that, in short, it is played out. To begin with, there arises an increasing cry against “partisanship,” the “fetish party,” and “caucus-despotism”—a cry which is taken up by the more robust and independent political thinkers. The party sheepdogs confess to an ever-growing difficulty in keeping their flocks apart. Cross-voting is on the increase. On every conceivable question, except that with which, for the moment, the existence of the Government is bound up, it is impossible to say beforehand what an analysis of the division lists will disclose. Surprises are frequent. Again, it is becoming daily more difficult to define party names. Thirty years ago no one describing himself as a Liberal would have had the slightest difficulty in explaining what he meant by the term. He would have said, “I am in favour of popular government as opposed to oligarchy.” One calling himself a Tory would have said that he disapproved of democratising the Constitution. Nowadays all is changed. We have persons calling themselves Tory-Democrats, and we have self-styled Liberals opposing extension of the franchise.
From this it is clear that, unless a large number of apparently intelligent persons have lost their reason, and talk and think in self-contradictory terms, party names must have changed their meanings. Liberal and Conservative no longer signify Democratic and Anti-Democratic, but something else.
The fact is politicians have been slowly and unconsciously regrouping themselves according to principles as fundamental and important as the old ones, but having little in common with them. Questions of the Constitution of the State have ceased to excite the interest which they formerly did. When the voice of the bulk of the population was stifled, when the will of the few stood for the will of all, other questions paled before the paramount question of representation. Now that the battle has been fought and well-nigh won; now that the old Liberals have obtained all they asked—with the exception of a few minor points which are a matter of time only—questions of State structure have lost their attraction. No large section of the people has much fault to find with the Constitution; and their attention is at last turned to the more urgent question of State function-the question, What ought the State to do? Doubtless some few Liberals of the old school still feel that something remains to be done before the Constitution is really complete and symmetrical. The abolition of the hereditary principle, as embodied in the Monarchy and the Upper House of the Legislature, is enough to absorb the energies of some of these; others point out that even universal manhood suffrage is not perfect democratic equality, so long as women remain disfranchised. Others, again, resent the interference of a dominant religious sect in the affairs of the nation. While some few, no doubt, are so fanatically logical and so consistently Liberal as to refuse to consider any question of Government duty, so long as a peer under sentence of death may claim to be hanged with a silken rope while a commoner must put up with a hempen one.
But although persons who put these questions in the forefront still exist as survivals from the days when Liberalism was a living religion, a quickening spirit, it is abundantly evident that the main body of political thinkers have long ceased to trouble themselves much about them. “Oh, never mind that, it will come of itself”; or, “It is dying, let it die”; “That is not worth powder and shot, we have other things to attend to”; such are the answers which even advanced party men make to the rump of the old school.
And what is it which casts into the shade the completion of the old work? Foreign affairs? No. Taxation? No; both parties are ready to make the taxpayer bear the cost of the necessary bribery. Religious discipline? No; that salt has lost its savour. Then what is it which diverts the energies of practical politicians from the great work of democratisation? The truth is, that while the battle for equality is well-nigh won, the battle for liberty is hardly yet begun. The question of the day is, Individualism or Socialism? Is the welfare of the race bound up with the freedom or with the slavery of the Individual?
Does a so-called Liberal Government bring in and carry a bill forbidding free bargains between landlord and tenant? What of it? A Conservative Government similarly brings in and carries a bill forbidding free bargains between manufacturers and their workpeople. Do Conservatives coerce a citizen to declare his belief in a particular religious dogma, or to forfeit his right to represent his fellow-countrymen? What of it? Liberals similarly, and with equal tyranny, coerce unbelievers to adopt certain medical precautions which appear to them not only inefficacious, but dangerous and dirty. Do Liberals vote away part of the property of urban landowners to build houses for their poorer neighbours? What of it? Conservatives propose measures to compel those who have invested their hard-earned savings in railways to carry the same poorer neighbours at less than cost of transport. Both parties alike agree to prohibit lotteries, lest foolish Yorkshiremen, Jews, Scotchmen, and Quakers, should buy an even chance of winning a shilling for sevenpence. But the plane of party cleavage is readjusting itself. Those who decry State interference are crystallising; those who advocate it to a qualified extent cannot long hold aloof from those who adopt it logically and consistently-the Socialists. The old party ties, based on personal attachments and the memory of old battles, are slackening, as one by one old veterans drop off and are replaced by younger men.
Before we are competent to define the proper sphere of State action with any degree of accuracy, we must survey the whole field covered by officialism at the present day, in this country and in other countries, and in past times. By the use of the comparative method, we shall possibly be enabled to detect permanent tendencies which will guide us in predicting the probable limitations of State action among civilised communities of the future. This work has not yet been done, or even begun, and it may be some help to those of us who are seriously considering this most important of all political questions of the day, if we cast our eye over the province of Governmental interference in our own country, with a view to ascertaining what substitutes for such action have in various directions been suggested, and how far they are feasible. From a condition of tribal socialism, Englishmen have taken many centuries to attain their present degree of civil liberty, and it is admitted that considerable remnants of the old patriarchal socialism still remain, and are likely to remain (though possibly in diminishing quantities) for many years, decades, and perhaps centuries to come. In so far as such socialism is necessary, because we are not yet ripe for absolute individualism, we are bound to regard it as beneficent socialism. It is none the less socialism. It must be understood then that in the following review of existing State interferences, no opinion is expressed on their goodness or badness.
Although there is no particular order in which State functions need be considered, it may be well to begin with those which are admitted by most people to be normal functions, and to pass on to those which are condemned by larger and larger numbers, till we come to those which even socialists would hardly defend.
First, then, we find that the State undertakes the defence of the country against foreign aggression. It maintains at the general expense a costly army and navy. It builds forts and ships, and supplies itself with all requirements in connection therewith. Some persons contend that it should not make its own guns and ammunition; that it should not build its own ships, or construct its own military railways; that it should not even erect its own fortifications; but that it should purchase all such things and services from private persons, under suitable contracts, regulated by competition. Over and above the defence of the country the State goes further; it follows the trade of its citizens to the uttermost parts of the earth, and for their protection keeps up lines of communication along the water highways. It holds other peoples in subjection, partly for their own good, but chiefly for the commercial advantage of Englishmen. Some people think that traders should be left to take care of themselves, to raise and maintain their own armies and fleets, as the East India Company did last century.
The next State function of which the large majority approve is the maintenance at home of law and order; that is to say, the defence of every citizen against the aggression of other citizens, and the enforcement of promises of a certain kind (contracts). With few exceptions, no one disputes the propriety of this State work. The performance requires the maintenance of Courts of Justice and an army of police. The extent to which the State should go in preventing crime is keenly disputed. Some, for instance, would prohibit the carrying of firearms; others would allow the storing of dynamite in private houses, leaving the consequences to private responsibility. Recourse has been had recently to spies and informers; some consider this bad, others maintain that it is defensible.
It has become part of the unwritten law of the country, though it is a law which is frequently broken, that the unsupported testimony of the police should not be accepted as conclusive evidence against a citizen unless there is a strong primâ facie probability of his having committed the offence with which he is charged. This rule has of late years been disregarded in a special class of cases. It seems to be taken for granted that anarchists and socialists are primâ facie disturbers of the public peace; and when charged with riotous behaviour or obstruction they have with growing frequency been convicted without a tittle of support from outside witnesses, on police testimony alone. I shall not be suspected of any sympathy with socialism. My aim is to counteract the teaching of its advocates, and of those who, without the logical consistency to accept it as a principle, adopt it in practice. For all that, the doctrine is a tenable one. Those who condemn it are logically bound to condemn the whole course of legislation promoted of late years by the neo-radicals of this country, and the National Liberals of Germany. If these politicians are right, then socialism is the ideal towards which we are striving. If they are wrong, then socialism is the reductio ad absurdum of their teachings and actions. It is this feeling of unfavourable comparison which causes the halting and purblind State socialists of both countries to hate and detest their more consistent, albeit more extreme and thorough-going confrères.
Socialism is an intelligible political theory. I think it is a mistaken one. But I cannot see what is to be gained by trying to stamp it out by brute force. In the case of political and religious beliefs, at all events, “force is no remedy.” Argument must be met by argument, not by truncheons. With Gamaliel let us say, “Refrain from these men and let them alone: for if this council or this work be of men, it will come to naught: but if it be of God ye cannot overthrow it; lest haply ye be found even to fight against God.” Truly if this political theory be unsound, unscientific, Utopian, it will fall to the ground; and if it be true, what is the use of fighting against the inevitable? Surely it is late in the day to have to offer this counsel to Englishmen? Has it not been accepted for generations? One would have thought that religious tolerance, freedom of belief, and free expression of opinion were a part of our Constitution. Whence, then, this sudden and spasmodic effort to trample out a creed (be it true or false) under the policeman's heel?
It will be remembered that some years ago, when this nation was meekly turning the right cheek to Germany after receiving some sharp slaps on the left, a most unprovoked raid was made by the police on a harmless foreigners' club near Tottenham Court Road; a number of Germans were badly knocked about, and some papers and members' books were abstracted in a mysterious manner. It soon became bruited about that the action of the English authorities was dictated from Berlin. It has long been an open secret that the asylum offered by London to political refugees is exceedingly distasteful to the rulers of foreign countries, and that certain exalted personages had made no secret of their determination to force England to join hands with the continental despotisms in “stamping out socialism.” The submissive response of our rulers to this request, or rather mandate, was the raid on the refugees' club. It has since been followed up, year after year, by systematic bullying of the mistaken doctrinaires; whose teachings are so cordially detested, and so servilely accepted and acted upon by our place-hunting politicians. If this foolish and un-English course of action is persisted in, in the hope of stifling this fascinating and fallacious faith, our rulers are grossly deceived and will some day experience a rude awakening.
Let me not be misunderstood; force must be met by force. If those who wish to change the existing order of things are foolish enough to endeavour to do so by violence, while as yet they are in a small minority, it will be the right and the duty of those who cling to the present order to crush remorselessly any manifestations of brute force. And there is no need to be too tender with disturbers of the public peace. On the contrary, while murder, mayhem, arson and intimidation are resorted to for the furtherance of political aims, prudent measures for strengthening the arm of the law and bringing criminals to justice promptly and unsparingly should meet with general support. But if there is to be a Coercion Act improvised by the Executive in England for the stifling of free speech, let all good individualists take sides for once with the socialists. Let foreign despotisms deal with the desperadoes of their own making. Galls do not grow on cherry-trees nor Caserios in a free country.
On no account whatever should the unsupported testimony of the police be accepted on a charge of solicitation or annoyance. If the person molested or aggrieved does not choose to come forward, it is clear that he cannot have minded it much. To put the whole responsibility on the policeman is not fair to the public, and still less to the police.
It is well known that the toll levied by the police upon public women for liberty (or shall we say license?) is not mainly in the form of money. The consequence is that every fresh power conferred upon the police for the worthy object of keeping the streets pure simply amounts to a ticket of admission to a disorderly house. That is the plain English of the matter, and everybody knows it except the dear good curate who takes up the purity crusade in the belief that with a little legislative assistance he can drive vice and crime out of the world. Let us not deride these good creatures. They have cultivated their emotions, religious and humanitarian, at the expense of their intellects, and much as we may admire their earnestness and zeal, we must not allow ourselves to be led by them into absurd and untenable positions.
In short, let us be warned in time. All these well-meant laws interfering with the freedom of adults to choose their own habits of life are fraught with danger. Above all, they tend to bring the law and its officers into hatred and contempt. The most law-abiding citizen will not submit to be knocked about by the police for doing what he himself believes to be his duty or his moral right. Each time such an attack on individual liberty is made by the State, a new recruit is enlisted in the army of anarchy. They are increasing to-day with surprising rapidity. There are daily and loud complaints that the police are becoming too much of a military body. But when we reflect on the allegation we see that it is impossible. The police cannot be too military in the true sense of the word. Organisation, discipline, centralisation—these are the attributes of militarism, and these are just what the police force requires in order to be efficient. But once hand the reins of government over to mon armé, and we have the worst form of government known to mankind.
Similarly, and in a less degree, confer judicial, quasi-judicial, and discretionary powers on individual members of the force, and you create an army of petty, arbitrary, and irresponsible tyrants. Every publican, every hotel-keeper, will bear witness how the spies of the Licensing Act have to be bribed off with beer. It is true that it is nobody's interest to drag these things to the light. The victims of this villainy dare not round upon the State sneaks. There is nothing for it but to pay and bear it.
But above and beyond all these detailed arguments, every free man's instinct tells him that it is not only his right, but his duty to resist the law to the utmost of his small power, by any means and at all cost, when it interferes with his freedom of action on any other grounds than that he is curtailing the equal freedom of others. Any attempt to swerve from this rule of Anglo-Saxon individualism must inevitably lead to the establishment of a savage despotism on the one hand, and a rebellious anarchism on the other. We are gradually moving in this direction. Law-breakers are becoming heroes and martyrs; the executive and police are becoming unpopular; and law and order are being drawn into general obloquy.
The next State function which very few persons deprecate is the levying of the necessary means for carrying out the above and other Government work. The raising of revenue by any kind of taxation is denounced by Mr. Auberon Herbert, but he seems on this point to be at present in a minority of about a 'bus-load.
I feel a special responsibility for the existence of the scheme of voluntary taxation. The earliest mention of any such system of taxation, so far as I am aware, is contained in a letter which I had occasion to write to Lord Derby at the time of the Patent Law agitation in 1872. Referring to a proposed Patents Board, I there said (2nd November 1872), “The revenue of the Board would be derived entirely from stamps, as the revenue of the State should be; no man being forced to purchase that which he did not require.” Some years later (November 1881) I was associated with Mr. Auberon Herbert in the preparation of a draft constitution for a proposed Non-interference Union, a society which, under that title, never saw the light of day. I therein inserted the following clause:—“The revenue to be raised by the sale of different orders of stamps, each stamp entitling the purchaser to some corresponding service rendered by the State in the performance of its legitimate functions.”
Commenting on this in a letter dated 4th November 1881, Mr. Herbert said: “I should like to see Mr. Donisthorpe's plan as regards Government stamps. I think the idea one which might work out into good results, if not too complicated.” But that we did not, at the time, regard the matter in quite the same light is rendered manifest by a note which he appended to the draft clause above cited, and which, though contained in a private letter, I trust it is no breach of confidence to quote. The note runs thus:—“I agree personally with this; but it requires putting into a longer form so as to be generally understood, and express our meaning more definitely. What we mean is this, is it not? To remove the compulsory obligation from all taxes, except those levied for the purposes of the protection of the individual and the nation” The italics are mine; but the italicised passage shows conclusively that, at that time, there was no such construction put upon the expression “voluntary taxation.” as that which has been happily described by Mr. Greevz Fisher as the circulation of the hat. My reason for mentioning these matters is that I wish to be entirely dissociated from the scheme in this, its new sense. It is just because voluntary taxation is beginning to be understood by the public as meaning nothing more nor less than the circulation of the hat, that I prefer not to be styled a “voluntary taxationist.”
But there is a further distinction to be drawn. Mr. Fisher, in his very able essay entitled Voluntary Taxation, has adopted that interpretation of the term which has always been the meaning I have myself attached to it, and which may perhaps be more clearly described as Taxation by Stamp. And yet he carries the scheme a great deal further than I am prepared to follow. “When the war drum throbs no longer, and the battle-flag is furled,” then the time will be ripe for the system all along the line. Not till then. At present our national expenditure may be roughly divided into three nearly equal parts: (1) interest on the debt; (2) national defence; (3) internal administration. As regards the first two-thirds, it seems to me not only difficult (verging on the impossible) to raise the necessary revenue by stamps voluntarily bought, but also unscientific.
So long as nations war and fight as wholes, and not as joint stock companies of individuals, each with a definite share in the concern, so long must the expense be borne and the revenue raised without any attempt to assess the particular advantage derived from such wars by the several individual citizens of the States engaged. It is the easiest thing in the world to find out what I ought to pay to insure myself against loss by fire. It is easy to learn what “tax” I ought to pay to a marine insurance society to guarantee me against loss at sea. I can ascertain the chances against having my bones damaged in a railway accident, and take the odds every time I travel, or once for all each year. I know that it costs about a farthing each on the average to carry letters to all parts of the United Kingdom; and, therefore, I do not grudge the penny which the present company (the State) charges me. And it would be similarly a very simple task to ascertain what would be a reasonable premium to ask for insuring my property against thieves and my person against violence. But it would be impossible to say with even approximate precision how much benefit I have derived from the Anglo-German Convention in Africa, or from the Egyptian Occupation, or the Burmese War. Hence it seems to me that any attempt to tax citizens in proportion to service rendered in international affairs would be nothing less than a farce. Taxation (as ordinarily understood) and militarism go hand in hand. When the latter becomes extinct, taxation will become a preposterous anomaly. And so it is now in regard to all matters of internal administration.
We may advocate democracy because it leads straight to anarchy, and yet at the same time hold that the rule for our practical guidance is not embodied in the formula, “No Government.” Are these statements really inconsistent? Take a parallel case. Addressing a Hindu audience I say I advocate democracy because it leads to civil equality, but that the practical rule of Government in India is not embodied in the formula, “One man, one vote.” Surely the road to London is not London. We may rejoice at being on the road to anarchy without considering that we are yet prepared for its complete adoption. I have known persons to live a virtuous life because it leads to Heaven, without in the least desiring to be prematurely landed there. “No Government,” I repeat, is not a sufficient practical rule for us at the present day. The time will come when it will be, and I rejoice to be on the high road.
Again, it clearly follows that if we are not yet ripe for complete anarchy, we must have an admixture of something which is not anarchy. That something may be called by any name, but as matter of fact it is socialism. So long as this element is necessary, say I, let us have it as good as possible. “If I must have water with my whisky,” a friend once said to me, “let me, at all events, have good water.” The administration of a criminal code and the defence of the country against external enemies are, at present, socialistic functions. The latter always will be, so long as there is any need for it at all. The former, ex vi termini, is socialistic, for a crime, by definition, is a wrong committed against the State as a whole; but when the criminal law is swallowed up by the civil (and this is the secular tendency), socialism will disappear from this field also. Meantime, since our knowledge of nomology, and its corresponding art, legislation, is too defective to admit of relegating this function to private enterprise, I am not ashamed to say that we must look for the amelioration of society in the immediate future to the strengthening of that organ of society which is charged with the task of punishing crime. While we must have an army, let us have a good army. While we have a post-office, by all means let the department conduct itself on the most approved business principles, and look after the interests of its customers. Even those who would abolish it (and I am one) must admit this. The Criminal Department will for some time yet remain socialistic. While this is so, would it not be the height of folly to weaken and impair the tool with which the work has to be done? Because a savage cannot use a plough, is he, therefore, wise to smash or damage the spade he is compelled to use? I say to him: Make the best of the spade, sharpen it and keep it clean, till the day comes when you will be advanced enough to use a plough. Rejoice that you are on the road to agricultural improvement, and that, at some future time, you will all use ploughs; but for Heaven's sake do not attempt ploughing yet, while you have neither horses nor oxen, and while your fields are full of stones.
We now come to matters of State interference which excite a considerable amount of opposition—rightly or wrongly. A novel claim has recently been preferred to what is called a right to privacy. Let us examine it. How far is the State justified in throwing its ægis over a citizen's privacy? The law of libel lies beneath. All law is a restriction on liberty. It is a peculiarity of good law that it gives more liberty with one hand than it takes away with the other. The reverse is true of bad law. When the individuals of a group are pretty equal in brute strength, it is a clear gain to prohibit the use of brute strength inter se. The gains and losses of the fighting all cancel one another in the long-run, and the fighting is a dead loss of power to the community. If a dozen tigers of equal strength, in a wood, would give up fighting one another and would reserve all their fighting power for their prey, it would be an immense economy of force. All would gain by the social compact. Civilised men have made that compact. Individual liberty is curtailed thereby, no doubt. But, at the same time, all are gainers by the arrangement. The rights acquired are many times more valuable than the rights lost.
The net result of this process is not the same as the result of cutting off a piece at the bottom of a blanket, and sewing it on at the top. It is more like thinning the grapes in a vineyard; whereby the vine is robbed of a great many grapes, but gains a great many more perfect specimens. The total outcome is a larger quantity of fruit and of better quality.
The sum total of the citizen's rights constitutes what may be called the Empire of the Individual. It consists of all those moral or “natural” rights which have not been taken away for the general good, and all those civil rights which have been conferred upon him by the State in exchange for the rights of which he has been deprived. And a glorious exchange it is for him. Who would sell his civil liberty for the complete unbridled lawlessness of the tiger?
It must not be supposed that the empire of the individual was defined once for all by some social compact, or that it has come to maturity at some past time, and is now definite and unalterable. On the contrary, it is still in a state of growth, like all other products of evolution, Men are continually readjusting the boundaries which separate their fields of activity by a process of give-and-take, whereby all parties gain. Changes in the law do not always result in an all - round gain, because citizens do not always see clearly what is for their own good. But, in the main, the tendency is in that direction. Good laws and customs tend to survive; bad laws and customs tend to die out. The principle of the survival of the fittest applies also in the realm of social ethics. It is well to guard very jealously this growth of ages. When a citizen is asked to sacrifice yet another slice of his liberty in exchange for some greater (promised) blessing, let him think thrice before yielding. There is no need to refuse doggedly and without thought. But even this degree of conservatism would be preferable to hasty acceptance of any proposed change. The experience of ages has, at least, stamped the status quo with the hall-mark of genuineness.
It has been said that the limits of the empire of the individual are vague, ill-defined, and debateable. There is a border region where even trained lawyers cannot say whether an alleged right exists or not. There is a whole department of rights of which no one can tell whether they rest on a basis of property or of injury. Take as example the so-called right to reputation. This may be regarded either as part of a citizen's belongings, or it may be regarded as resulting from a general prohibition—from a command addressed to all the citizens by the State not to do certain acts roughly classed as slander and libel. Both these views have been adopted, not only by leading jurists, but also by Courts of Justice, with the result that the existing Law touching this debateable region is about as conflicting, inconsistent, and vague as it well could be. Professor Holland goes so far as to group the Right to Reputation with Rights in rem. Even Austin is at his worst on this theme. Says he: “Inborn or natural rights (or rights residing in all without a special title) would therefore fall into two kinds: namely, right to personal security or right in one's own body, and the right to one's reputation or good name.” Black-stone calls these “absolute rights,” though what that means is doubtful, and he includes the right to health. Here he is consistent. A man with a bad reputation has as much right to his “good name” as a man with a bad digestion has to his good health. There is something rather comic in both notions. But it is the inevitable result of resting the whole law on a basis of rights. Others would contend that no citizen has the right to store decaying refuse near a neighbour's house, or to tell false tales about him calculated to injure him; the result of such general prohibition being tantamount to a right to health and good name vested in every citizen. False generalisations make bad law. Similarly, on the borderland between old-established rights and rights which are only half-admitted, stands the right to what is called “property in ideas.” This right is differently classed in different countries, and by different jurists. Is it, correctly speaking, property at all?
Again, at the present day there comes looming into view a kind of claim to privacy; a right to be left in peace; a right not to be dragged into public view. What this right is, and how it ought to be sanctioned, are questions which two able American lawyers, Messrs. Warren and Brandeis, set themselves to solve in an extremely able article in the Harvard Law Review in 1890. And it may be admitted in advance that, assuming the soundness of their premises, the case for the right to privacy is made out. The analysis is subtle and the logic is unassailable. The object of the inquiry is to ascertain whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual—“for securing to the individual what Judge Cooley calls the right to be let alone.” Seeing what a tangled web of contradictions, inconsistencies, and absurdities the existing law is, it would be remarkable if a principle could not be extracted from it which might be invoked for the protection of any claim whatever. It is, therefore, not at all to be wondered at that these two able writers have succeeded in making out a very strong case for extending the existing law so as to cover the whole area of what they call an inviolate personality. What exactly this means it would be difficult to define. It is vague; but not vaguer than the rights which the law already professes to recognise. When it comes to the embodying of the principle of inviolate personality in a bill—a task which has been undertaken by W. H. Dunbar, Esq., of the Boston Bar—the difficulty becomes plainer. The result is a break-down. A clause has to be inserted which knocks the bottom out of the “principle” altogether. “Whoever publishes in any newspaper, journal, magazine, or other periodical publication, any statement concerning the private life or affairs of another, after being requested in writing by such other person not to publish such statement, or any statement concerning him, shall be punished by imprisonment in the State prison, not exceeding five years, or by imprisonment in the jail, not exceeding two years, or by fine not exceeding one thousand dollars: provided … ” It is probable that after the passing of such a Bill, editors would be careful not to forewarn their victim that the public was about to be made acquainted with his domestic troubles, his youthful follies, or his personal defects and foibles. On the other hand, without the clause which I have italicised, the bill would have no chance of becoming law; and if it passed, the press would be reduced to a state of abject paralysis.
Of course, the practical question is whether the good obtained by such an alteration of the law as proposed is worth the cost. Every extension of the law being a restriction of liberty, will the gain in this case outweigh the loss? Before examining the argument of the writers of the article, let us premise that it cuts both ways. It goes far to show either that the law as it now stands should be so extended as to cover the right to an inviolate personality, or that the law as it now stands is bad. If the decisions cited are sound, then the extension advocated is a logical consequent And if the extension advocated can be shown to be inexpedient, the decisions relied on are thereby condemned; or, at least, their claim to acceptance is weakened. Probably Messrs. Warren and Brandeis will admit this; for their whole argument is historical. They begin with a learned account of the evolution of certain ill-defined rights, and they show how these sprang from rights of a simple kind.
In very early times the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms: liberty meant freedom from actual restraint, and the right to property secured to the individual his lands and his cattle. Later there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life—the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession—intangible as well as tangible.
We are then conducted down the stream of legal evolution. We are introduced to the first reported case where damages were recovered for a technical assault; to the rise of the Law of Nuisance; to the earliest case of an action for slander; to the first recognition of copyright in England; to the first recognition of “goodwill” as property; and to the first steps towards State protection of trade-marks, trade secrets, and patented inventions.
Our guides then point right ahead into the future. After a graphic description of the processes which the resources of civilisation have already furnished, and are about to furnish, for the torture of private persons—such as instantaneous photography, the phonograph, society journalism, etc.—they ask us to consider “whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual.”
This brings us at once to the contemplation of the existing law. The writers seem to be in some doubt as to what class the right to privacy should fall within. Therefore, they prudently try both. First, they regard the right from the point of view of the recognised rights to compensation for injured feelings. Finding the position untenable, they fall back on property.
It is not, however, necessary ... to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honour; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which, properly understood, afford a remedy for the evils under consideration.
After this admission, it is hardly necessary to follow them through their examination of existing law dealing with injured feelings; more especially when we reflect that mere injury to the feelings taken by itself, and without other ground of action, is not recognised by our law. Even the wounded feelings of a parent, whose daughter has been dishonoured, can be considered only under the vulgar fiction of loss of service. We are thus driven to derive the right of privacy from the law relating to property—especially what is called incorporeal property. And the first form dealt with is a man's right to his own ideas, sentiments, and emotions. “Under our system,” we are told, “he can never be compelled to express them” except in the witnessbox. True; but how far does this carry us? It certainly does not prove his proprietary right. But even if he has chosen to give them expression, we are further told that “he generally retains the power to fix the limits of the publicity which shall be given them.” Now I must meet this with a denial. It is quite true that certain judicial decisions lend colour to such a contention; but, for the most part, these decisions are of little weight. The case mainly relied on is that of Prince Albert v. Strange, and the decisions both of Vice-Chancellor Knight Bruce and of Lord Cottenham (on appeal) are extensively quoted. But both, having served their abject purpose, might now, one would think, be allowed to fall quietly into deserved oblivion. Certainly it is not in America that we should have expected to see them cited with approval. And in most of the other cases cited in support, the decisions seem to have been based on improper grounds—even when good in themselves.
Take the case of private letters. It is true the law on this subject is Not only vague, but contradictory. It has been held that the writer of letters retains such a property in them that they cannot be published without his consent. But this is an absurd straining of the law. See whither it leads us. “A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day: no one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully.” So say Messrs. Warren and Brandeis. And they go further. They say that it is not merely the arrangement of words which the law protects, but “the fact itself.” Surely this is intolerable. Where is the sanction? Such a law would give a scientific writer copyright, not only in his book, but in the discoveries and theories contained in it. One could not discuss the evolution of law, for example, without paying tribute to Mr. Herbert Spencer for the use of the knowledge given to the world in his First Principles. I am far from pretending that the publication of the fact of the letter-writer not having dined with his wife might not be actionable. It might fall under the head of defamation, or of breach of contract, or of confidence (implied contract), or of trespass (when access to the information was improperly obtained), or of agency. In any of these ways the publication might be actionable, but not as an invasion of proprietary right. “Suppose a man has a collection of gems or curiosities which he keeps private; it would hardly be contended that any person could publish a catalogue of them.” Indeed it would. How could such a publication be objected to, except on the ground that access to the knowledge has been improperly obtained?
As for Lord Cottenham's vacuous remark—it is nothing else—that a man “is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his”; it only wants translating into plainer English thus: “A man is entitled to be protected in the exclusive use and enjoyment of that to which he has the right to the exclusive use and enjoyment”; and we have an identical proposition of the most elementary kind.
If unpublished manuscripts were really and truly property, it is clear they would form part of an insolvent's assets—which they do not. Nor can they be seized and published by his creditors without his consent. This is admitted. There can be little doubt that the proprietary rights of an inventor or writer are based on a contract between the State and himself. He possesses a valuable secret. Unless the public guarantee him a reward, he will not part with his secret. The question for the legislator is: What is the amount and kind of reward which is best calculated to stimulate invention and literary talent for the good of the community? If the secret of alleged value turns out valueless, no one is hurt.
The best instances in which the publication of other people's ideas, etc., has been held to be improper, are those in which there has been a breach of trust or of confidence. Where a clerk gives information as to his employer's books; where an engraver makes a certain number of copies of a picture to order, and then makes some more for his own use; where a visitor to a factory copies some new secret process; where a shorthand writer attends a series of private lectures and publishes his notes; where a doctor's assistant makes use in his private practice of secrets learnt in his principal's laboratory—in all such cases there is a breach of trust or of implied contract. In Pollard v. Photographic Co. (cited), a photographer was restrained from exhibiting or selling copies of a lady's photograph which he had taken in the ordinary way of business. But it may be doubted whether Mr. Justice North did not lay too much stress on the breach of implied contract. It may be maintained that the negative is the property of the sitter, and that the photographer retains it in his possession as the agent of the sitter. Reference to the customs of the trade would give support to this view. Here the photographer was in the position of a pawnbroker who should take advantage of his possession of another man's painting to get it engraved and to sell the engravings for his own profit. But to say that a photographic negative is the property of the sitter who pays for it is very different from saying that every person has a proprietary right in his own features. And yet this is what we are asked to claim—“a general right to privacy for thoughts, emotions, and sensations, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.” Surely the legal recognition of any such right as that demanded would be a loss rather than a gain to liberty.
The State holds itself responsible for the qualification of certain private workers. Persons who wish to practise medicine and surgery, to sell drugs, to lend money on pledges, to deal in second-hand metals, to sell alcoholic liquors, tobacco, or “game,” to plead in the courts, to mind engines, to carry on a variety of other occupations, must satisfy the State that they are properly qualified by education or respectability or both. Some think that if the Bar, for example, were thrown open, the public would easily judge for itself as to the competency of the competitors, just as it now does in spite of the Government certificate. The same argument is applied to medicine. Due responsibility for culpable negligence would, it is said, suffice.
And the State carries on many works also on its own account. It carries letters and parcels, and sends telegrams. Some point to the fact that the telephone companies, which are private, are much more cheaply worked than the telegraphs, and deduce the natural conclusion from the observation. Others point to the high charges which private carriers made for letter-distributing before the State took up the work and claimed the monopoly.
A dozen years ago, in America, when letter postage was still three cents, Messrs Wells, Fargo, and Co. were doing a large business in carrying letters throughout the Pacific States and Territories. Their rate was five cents, more than three of which they expended, as the legal monopoly required, in purchasing of the United States a stamped envelope in which to carry the letter entrusted to their care. That is to say, on every letter which they carried they had to pay a tax of more than three cents. Exclusive of this tax, Wells, Fargo, and Co. got less than two cents for each letter which they carried, while the Government got three cents for each letter which it carried itself, and more than three cents for each letter which Wells, Fargo, and Co. carried. On the other hand, it cost every individual five cents to send by Wells, Fargo, and Co., and only three to send by the Government. Moreover, the area covered was one in which immensity of distance, sparseness of population, and irregularities of surface made out-of-the-way points unusually difficult of access. Still, in spite of all these advantages on the side of the Government, its patronage steadily dwindled, while that of Wells, Fargo, and Co. as steadily grew. Pecuniarily this, of course, was a benefit to the Government. But for this very reason such a condition of affairs was all the more mortifying. Hence the postmaster-general sent a special commission to investigate the matter. He fulfilled his duty, and reported to his superior that Wells, Fargo, and Co. were complying with the law in every particular, and were taking away the business of the Government by furnishing a prompter and securer mail service, not alone to principal points, but to more points and remoter points than were included in the Government list of post-offices. Similar attempts in London have been ruthlessly stamped out.
It is a mistake to suppose that the Conservative party is less under the influence of socialistic ideas than its rival. On the contrary, its socialism takes another form. It does not perhaps rob the rich to give to the poor, but it is equally ready to strangle private enterprise and to substitute State machinery. Here is a specimen of Tory socialism from the Morning Post:—
In the commercial progress of the last five years England takes the penultimate position amongst the eight leading industrial nations of Europe. That is our position now, and unless we realise it and remedy it, we shall be forced to the startling conclusion that England's day is gone. Various remedies are of course proposed. Various causes are pointed out as the efficient cause of our apparent decline with more or less plausibility; and various more or less wild remedies have from time to time been advocated. But there is one proposal which alike touches the cause and points out the remedy for all our woe, and it is one which is happily forcing itself upon the mind of every thinking man. It is the State purchase of railways—a startling idea of enormous magnitude, but also one of enormous potentiality. The more familiar the idea becomes, the more it grows upon us.
Listen to the several arguments adduced in favour of this wildest of socialistic remedies. First, there is the analogy of the Postal and Telegraph systems; “when they were first contemplated by the State, these excited just the same opposition, just the same prophecies of ill-omen as this idea of the State purchase of railways is now exciting, yet in these cases every objection has proved to be groundless.” Indeed; individualists have arrived at a different conclusion. The telegraph business has been a losing concern from the first, and not a day passes without some exposure of the misdoings and extravagance and inefficiency of the Postal Department.
The next argument is a little dogmatic, but not more so than the occasion demands: “It is all very well to talk about interference with vested interests and socialistic robbery, but neither principle is really involved.” That settles the matter. Individualists say the State purchase of the railways is a socialistic measure. To which the Morning Post replies: “It is all very well to say so, but it is not.” The argument is a strong one, but let us pass on to the next. This consists in stealing weapons from the enemy's armoury. “Self-help” sounds well, even though the Tory socialist has no conception of the thing itself. “Is not, then, this latest idea of national self - help worthy of all careful consideration?” National self-help! The mind of the writer who penned that phrase seems to stand somewhat in need of a little State - help. Lastly comes the characteristically un-English argument from Continental example. If you want to know how to conduct your affairs, look across the seas. This is the new-fangled notion. Look at the police desmœurs. Why cannot we have them? Look at State-subsidised theatres and concerts in France and Germany; why cannot we have them? Look at the French Academy. Why not an English Academy? So the Morning Post quotes with approval the words of a French railway magnate: “Everywhere there is an increasing objection to leaving in the hands of private enterprise, however respectable it may be, the solution of questions which exercise such a weighty influence on the economical development and industrial life of the country.” No doubt this is the belief in the minds of the State-coddled creatures across the Channel—the majority of them. But it is not an increasing belief in England, except among that hopelessly conceited set of Constitution mongers who picture themselves as the Governors, and other people as the governed. If the staff of the Morning Post had control of the railways, no doubt tariffs would be lowered and dividends raised, there would be fewer accidents, and—, etc. But seeing that State departments do not as a rule fall into the hands of genius, but into the hands of ordinary officialdom, we must put aside this Utopian vision for the present. Twenty years ago about a fifth of the Continental lines belonged to the State. Ten years ago the State held a third; to-day more than half the Continental railways are under Government control. Probably the transfer of the entire system to the State is, as the organ of Tory socialism says, merely a question of time. In England this desperate consummation sinks further and further into the background—to the great grief and disappointment of the socialists. Says their Tory organ:—
While the position of each other nation becomes daily more favourable, our own is exactly the reverse. Each year the State purchase of our lines becomes more difficult, and the price to be paid higher; each year that inversion of the fitness of things, the management of the State by the railway companies, becomes more complete. The case is precisely analogous with that of the water companies. When Mr. Cross brought in his bill for the purchase of these properties, the Government might have had them at an enormously less cost than will now have to be paid, but the opportunity was missed. So, in 1870, the English railway companies might have been bought out for, £500,000,000 or, £600,000,000; now the cost to the country will be something like, £1,000,000,000. Yet the price must be paid sooner or later.
The Social Democratic Federation, which carries the principle of nationalisation a little further than the Morning Post and the Tory branch of the party, maintains that the mines are also in an analogous position. And pray why not? Also the factories and ships and gasworks, not to speak of agricultural and urban land. Probably this hybrid product of a degenerate age is prepared to furnish clear and irrefragable reasons why the State should nationalise these agents of production, and why it should not nationalise those. What they are I do not know. As yet they lie fathoms deep in the editorial consciousness.
“Look at the Indian State Railways.” Well, to begin with, the more we look at them, the less we like them. But supposing that they could favourably compare with railways created and worked entirely by private enterprise (which they cannot), even then the comparison would be grossly unfair. Seeing that the State, by a straining of an Act of Parliament which verges on sharp practice, contrives to shirk dock and harbour dues on all materials shipped from this country to India for the purposes of State railway construction, the contest is not an even one, but a most unfair handicap. Why the State should enjoy protection more than any other firm of railway contractors is a question which can be answered only on the socialistic hypothesis that it can do the work better and more cheaply than any other firm; coupled with the further proposition that, in order to enable it to do so, it requires to be bolstered up and protected against competition. The two theories do not look well side by side.
Then the State examines poetry and chooses, or did till lately choose, the best poet as the Laureate. It studies astronomy on its own account, and appoints an Astronomer-Royal. It undertakes scientific expeditions and (some ten or twenty years after) publishes reports of them. It vies with private enterprise in its efforts to get to the North Pole. It collects pictures and books and objects of antiquarian and scientific interest, and stores them in national museums and galleries. It keeps up botanical gardens, and also gardens for simple recreation. All these things may be regarded as national, and not calculated to benefit any particular class of persons at the expense of the others. In some quarters it is objected that these matters would be attended to by private enterprise if it were not for State competition, and better managed.
Individualists are generally confronted with the argument that but for State action it would be impossible for the inhabitants of large towns and populous places to enjoy the luxury of public parks and gardens. Hyde Park and Kensington Gardens would, sooner or later, fall into the hands of speculators in brick and mortar. Those who accept this view of the helpless condition of organised communities should read the annual reports of the Metropolitan Public Gardens Association, which show what private enterprise is capable of effecting.
It is pointed out that the Polaris Expedition effected more than the British Expedition under Captain Nares at less than a tenth of the cost; and that the report of the Challenger Expedition is still very far from complete. On the other hand, it is contended that no private library can compare in any respect with that of the British Museum. Similarly, it is said that private individuals could never have kept such recreation grounds as Epping Forest out of the hands of the builders for the good of the public health.
What is the duty of the State in regard to the assemblage of considerable numbers of persons, orderly or disorderly, or presumably about to become disorderly? Freedom of public meeting is a heritage for Englishmen not only to be proud of, and, if need be, to fight for, but it is also, it seems, a shibboleth to go mad upon. No one disputes the right (long since battled for and won) of the inhabitants of these islands to meet and discuss their grievances in public. Any attempt on the part of the State to say to any set of persons, “You shall not meet anywhere for the purpose of discussing such or such a question,” would be a violation of the unwritten constitutional law of this country, and an act of despotism which would rightly be met by the forcible resistance of all free men. But consider what this right implies, and what it does not imply. Probably few would pretend that the licensed victuallers have a right to hold a monster meeting in the middle of the Strand at mid-day to ventilate their grievances under the Licensing Acts. The most strenuous advocate of the “land for all” would hardly allow a tribe of gipsies to pitch their tents for a week in Oxford Circus. Then, to take a historical case, by what right did “the unemployed” in 1887 claim to hold Trafalgar Square day by day for weeks together? Not by the right of public meeting. They had been told that they could meet in any suitable place, out of the way of traffic and trade. Hyde Park was so free to them that they scorned to use it. Was it by right of immemorial custom? Trafalgar Square has been a recognised place of public meeting for a long time; it is handy of access, has plenty of room, and contains nothing that can be made the instrument of riot or the subject of destruction—no loose stones or tottering railings. One would pronounce the Square in all respects a suitable corner for a lawful public meeting. Anyhow, the chief of the metropolitan police took a different view (based, for all I know, upon other grounds) and proclaimed the meetings. He applied for the assent of the people's representative, that is to say, the Home Secretary, and obtained it. This put the organisers of the riot altogether out of court. He also applied for and obtained the approval of the Commissioners of Public Works and Buildings, though it is difficult to see what they had to do with the matter, unless it was seriously supposed that Nelson's Column and the National Gallery were in danger.
Such being the facts, there can be no doubt that it was the duty of those who thought Sir C. Warren had taken a mistaken or an arbitrary view as to the fitness of the Square for public gatherings, to raise the question first of all in a peaceful and parliamentary way. We outsiders are inclined to think that Trafalgar Square is a particularly suitable meeting ground. We have many pleasant associations with the place; we recollect many important and public-spirited meetings there; and, moreover, the right of the public to assemble in it has been undisputed for so long a time as to have hardened into a prescriptive title. But there is a lawful and unlawful way of defending even our admitted rights. For example, a mistake is made in the parcels-office of a railway station, and a passenger's claim to his own portmanteau is disputed. He is not at liberty to bounce into the office, knock the clerk down, and carry off his own goods by brute force. So we must condemn the action of those who ought to know better, and who goaded on the mob to effect by violence what probably could even then have been, and eventually was, attained by lawful and peaceful means.
It would be interesting to learn how far the noisy champions of public meeting at any price are prepared to go. Would they allow a gathering of anarchists, convened for the avowed purpose of organising and planning the destruction of London? One would also like to know how far the chief of the police was actuated by the consideration that the Trafalgar Square meetings were openly convened by persons who made no secret of their intention to act unlawfully, and who did, as a fact, use seditious language. If this was his chief reason (or the Home Secretary's chief reason) for putting an end to the daily assemblages, it would have been better to base the prohibition on the true ground, rather than to rely on the mere technical argument as to the rights of the dwellers in the neighbourhood, which have long since been forfeited by adverse use.
Several hundreds of men parade the streets with a banner bearing the by no means strange device, “We've got no work to do.” They also appoint a deputation to wait upon the Mayor, who usually seems somewhat panic-stricken, or, at least, unprepared. He promises to bestir himself with all speed, and to wake up his fellow-councillors. In spite of this, the police carry off the banner, to place it no doubt among their trophies of victory. But here, as in all great tragedies, the humour lies upon the surface. All the nonsense talked, all the bombast bellowed, all the flummery and buffoonery of ignorant processionists, and “armies” of one sort and another is a mere superficial scum which rises to the top and serves no other useful purpose but to show the expert what quality of metal lies beneath—its composition and its temperature.
Where there is smoke there is fire, so it is said; and only the careless and unobservant can express a doubt as to the existence of real and terrible distress among the working classes all over the world at the present time. There are economists who are ready to say, “True, at such times the fit must survive, and the weak must go to the wall; it can't be helped, and therefore it is no use talking.” But this is hardly an argument likely to commend itself to the classes who are chiefly interested in the problem. Besides, is there not a weak link in it? Doubtless the unfit will be eliminated, and the fit will survive. But is it quite certain that under existing arrangements it is the absolutely unfit who go to the wall? At any rate, it is an open question. That they are the unfit under the present system of industrial organisation is proved by the fact that they are short of the means of subsistence. The unfit are those who fail. Shipwrecked on a desert island well tenanted by wild beasts, who would be the fittest in the following crew—Socrates, Seneca, Shakespeare, Spenser, and Sykes (the world-renowned Bill)? I would venture to take Bill for choice. But transplant them to another country, under another and a higher social system, and Sykes takes rank with the unfit, and is forcibly or indirectly eliminated. Is it not possible that under a better system of industrial organisation many of those whom the callous political economist stigmatises as the unfit might turn out to be the cream of the race? Then let us look well to the system before we rashly assume that it is the only possible one, or even the best Meanwhile the unfit, or the unfortunate—as the case may be—are acquiring knowledge, strength and organisation. Unless we are prepared to satisfy them that the unjust is the just—or at least the inevitable—we had best look round and see how justice can be done. The stronger to-day may not be the stronger to-morrow.
It is but natural that uncultivated men should attribute their own want to the heartless greed of those who apparently have enough and to spare. They cannot know or even guess how short a way the whole of existing wealth would go if divided amongst the masses to-day. The whole rental of Ireland would give but ninepence a week to the Irish population per head. One day two socialists called on a German millionaire claiming an equal share in his great wealth. “Very true,” replied the Baron, “and very just. I have forty millions of marks: the population of the country is forty millions. Your shares, therefore, will be one mark each. Here you are, gentlemen. Good morning.” Seriously, the total consumable wealth and exchangeable wealth of England would not, if realised, keep the population in idleness for more than two years, or three at the outside. The present depression, then, is not to be attributed to the accumulations of property owners. The fact is, we cannot eat our cake and have it. If we are to have short hours, at a cost of a hundred million pounds a year, as we have, and Unionist quality of workmanship, as we have, we must expect that our gross receipts for work done will be less than they used to be, and will grow less and less year by year. Not volume of trade, not prices, not rate of wages, are the test of a nation's prosperity, but a high rate of general profits. This has not obtained in England since 1873. Signs are not wanting of a revival, but so long as we remain handicapped as we now are by State restrictions on labour and contract, our old commercial pre - eminence can never be regained. And the workers will go on starving.
But beyond these national institutions, the State undertakes to provide others which benefit one class at the expense of the remainder: it maintains local baths and wash-houses, free libraries and free schools; and it builds dwelling-houses for certain classes of persons. It is contended by the advocates of these State institutions that, although one class is primarily benefited, the whole community derives indirect advantage from them. Individualists, on the other hand, urge that private enterprise will, in the absence of Government competition, supply enough to meet the demand, and that more than this is detrimental to the public welfare. It is also said that the quality of the supply is thus stereotyped and private initiative crippled.
The advocates of rate-supported libraries would do well to offer an opinion on the desirability of rate-supported theatres. Mr. Henry Irving is an actor. Acting, to be effective, requires theatre accommodation. Theatres cost money. Money which might conceivably pass from the pocket of the theatre-goer into the pockets of the actor, is much of it somehow intercepted by the owners of theatres. Hence what more natural than that Mr. Irving should propound to the good people of Glasgow his theory of theatre nationalisation? He has no doubt, he says, that the time will come when every municipality will have its own theatre. The people will no longer be dependent on the selfish middleman who now taxes them so heavily. Then will the stalls be half-a-crown and the pit sixpence. The playgoer will pay less, and the player will receive more. Truly a consummation devoutly to be wished!
Mr. Irving was asked who is to pay the difference. Somebody must pay it; unless we assume that the providing of theatres is a branch of industry which has not yet found its level. If so, then capital must be constantly flowing into it, and the average profits of the undertakings must be high. But we do not find that this is so. Owners of such property grumble and declare that profits are low, and indeed we seem to see more failures among the lessees of theatres than among any other class of speculators. We are, therefore, driven back to the conclusion that we are not the victims of a theatre monopoly, as some people pretend; that there is free trade in the article, and that average profits are not above the normal. Consequently, if public and player are to receive more than they now do, it must be because somebody is to pay that difference who at present escapes it. Of course in the case of municipal theatres that somebody is the ratepayer. If all ratepayers went to the theatre, the evil of following Mr. Irving's advice would be similar to the evil of establishing borough gasworks; and the Salford people know exactly what that is. But all ratepayers do not go to the play. The majority probably abstain from that luxury. Hence Mr. Irving's advice amounts to telling the playgoers to tax the non-playgoers, and to spread the expense all round. The reading public have already effected this manœuvre, and charged their expenses on the non-reading public by means of the Free Library Acts; but then they are the majority, and have brute force to rely on; and it may be doubted whether Mr. Irving's art can count on a majority in any of our big boroughs yet. When it can, Mr. Irving tells us he has in his pocket a plan of a theatre which is everything that can be desired. It wili not burn. It is splendidly ventilated and illuminated. Everybody can see the stage, and so on. Then let him build it. I for one shall be delighted to take shares. Here is Mr. Irving's answer:—
Sir—In reply to your comments on a recent speech of mine, I would simply say: (l) That a well-conducted theatre is as necessary as a free library; (2) That if the question were put to the vote, a majority of the ratepayers, I believe, in large towns would support such a theatre; (3) That whereas a free library is a charge to the ratepayers because it is free, a theatre would not be free, but, if properly managed, would be a paying speculation. The municipality might safely guarantee at least 4 per cent.—Yours faithfully,
I quite admit that a good theatre is as necessary as a free library—nay, far more so. Indeed, the lasting and true educational effect of the work done at the Lyceum Theatre alone during the last few years, has been more potent for good than all the free libraries in the country. But then this is saying too little; because in all probability no good whatever has resulted from the Free Library Acts, and much mischief. Bought goods are cheaper than stolen. And this saying applies just as fitly to the use of books or the enjoyment of the drama, as to the satisfaction of the baser appetites.
If Mr. Irving's second contention be sound, which is quite possible, I fear the demand svould be for a quality of entertainment which Mr. Irving himself would hardly care to provide. And in any case, if the majority of ratepayers really want a good theatre, they are wealthy enough to provide themselves with one without taxing the minority for its support. No doubt a thoroughly good theatre constructed on approved principles, such as Mr. Irving's experience could design, and conducted on sound and healthy lines, would in most large towns pay 4 per cent, and perhaps a good deal more. Then why cannot some persons with a love for the drama combine philanthropy with business, and plank down the money for a first start—say in Manchester? It is high time something of the kind was done, for the public is getting rather sick of fires and panics in theatres. There is not the smallest need to apply to Great National Pickpocket.
Commenting on this correspondence at the time the Manchester Guardian said: “A municipality would be justified in undertaking a theatre, if such were the desire of the majority of the ratepayers.” This is a bold assertion. No reason is given. It might have emanated from the Vatican in the Middle Ages. Perhaps the only way to meet such a dogmatic statement is this: A municipality is not justified in undertaking a theatre, even if such were the desire of the majority of the ratepayers. If the Manchester Guardian would condescend to argument, I would ask whether the proposition is a deduction from the general statement that the municipality is justified in undertaking anything whatever when such is the desire of the ratepayers; or whether it is based on some peculiar attribute of theatres which renders the proposition axiomatic. But on a question of this sort one cannot accept the ipsedixit even of so ably conducted a journal as the Manchester Guardian.
The State is asked by some to distribute the population in accordance with the fertility of the soil and the production of the district, by what is called State emigration, or State-aided colonisation. This is strongly opposed by the majority, which maintains that population distributes itself most economically when left to itself. But the same majority approves of so distributing wealth that those who have shall contribute something towards the maintenance of the utterly destitute. Some contend that the levying of a poor-rate is in response to a legal and moral claim on the part of the poorest section of the community—a right to live. Others say it is a tribute to the national sentiment, the offspring of pity, and in the same category with the laws against cruelty to animals; while others again defend the poor-laws as a safety valve against revolution, and without any other justification.
Both emigration and immigration are attracting attention just now. How ought the State to deal with these questions? Socialists (who believe in the equal rights of man) consider it unfair to exile a proportion of the workers in order to leave more room for the idlers; and, moreover, they hold that, under a fair distribution of wealth, England is capable of supporting a much larger population than she now does, and in a superior state of frugal comfort. That is why they oppose State - aided emigration.
Individualists oppose it, first, because for the sake of argument, supposing emigration in itself to be a good, even then they are satisfied that the State would manage it extravagantly, ruinously, and badly. Furthermore, they know that it can have no effect whatever in relieving the home labour market. Assuming that a million persons have been removed within the last twelve years, and accepting Euler's calculation that civilised populations, if unrestricted, will double themselves in twelve and a half years, they perceive that it would have been necessary to remove not one million, but fifteen million persons in that space of time, in order to relieve the labour market at home. Moreover, they contend that State emigration must be directed towards removing either the skilled and efficient, or the unskilled and inefficient. If it means “shooting” our breakages on to foreign shores, there to perish, it can hardly be called a humanitarian movement. It might reduce our poor-rate slightly and temporarily at a greater cost to the taxpayer (who is almost the same person as the ratepayer); but it would not benefit the exported; nor would it benefit the countries receiving the unwelcome guests; nor would it ease the drag at our own wage-fund. But if it means exiling our skilled workers to enrich the labour markets of other countries, and to leave us the inferior, then, again, we protest; we prefer to see the fittest survive at home, and the race gradually improve in consequence. Take the case of the Chinese in America, which is analogous to that of the Russian Jews in this country. No one is compelled to enter into family alliances with the Chinaman, and so, apart from choice, there is little danger of injuring the race by a feeble strain. That, indeed, is not the objection usually urged. It is said that Chinese competition lowers the value of the American labourer in the market. The Chinaman underbids him, to which the reply is, so much the better. If the Celestial is the better man of the two, the sooner the American goes to the dogs the better. But he is not better, say the advocates of interference; he is worse; nevertheless he can do certain kinds of unskilled and even skilled work as well as we can, and at a cheaper rate. Very well, then, he is the better man for those purposes. Let us leave those kinds of work to him, and set to work at something “higher” ourselves. To take a parallel case. Horses lift, carry, and pull loads; if there were no horses, asses, oxen, other beasts of burden, or engines, it is clear that men would be required to do the lifting, carrying, and pulling themselves, just as they did under the Pharaohs who built the Pyramids. Every horse in the land turns out of work from half-a-dozcn to a dozen unskilled labourers who would otherwise fill its place. The horse is the heathen Chinee: with equal justice and wisdom he ought to be knocked on the head. Unless Man is prepared to admit that he is worth less than a horse or an ass, let him prove his superiority by earning more in fair competition, not by crushing out his competitor by brute force. What iron and steam and brute beasts can do, Man should be above doing. And what Chinamen can do, Anglo-Saxons should be above doing; they are fit for something better. Leave the Chinaman alone.
Of course socialists beg the question as to the propriety of stopping competition by pushing the Chinese on one side, A fair trader contributes to a socialist paper this syllogism. “It is wrong to admit Chinese labour into an English colony, because so to do is to bring low-paid labour to compete with high-paid labour. But to bring goods made by low-paid workers abroad into this country to compete against the home-made goods of our high-paid workers, is to tolerate such competition. Hence free-trade is a fraud.” I accept the logic, but deny the major premise. Hence the conclusion falls. The same writer is consistent enough, and foolish enough to quarrel with machinery. Let Americans either break up their iron rivals, or leave John Chinaman to carve out his normal vocation in hope and peace. Similarly, let Polish Jews do work in East London unfit for Englishmen.
Again, the question has been keenly debated whether the State is warranted in stepping in between a citizen and his own animals in the interests of humanity. Some say these matters may safely be left to the social sanction and the growing conscience of the Race.
Other State interferences may be classified under the heads of sanitation, morality, religion, and justice. Whether individuals should be allowed to dispose of their sewage as they think fit, or should be compelled to adopt some general and approved system; whether they should be forced to adopt certain medical precautions in the general interest, such as those required by quarantine laws, Vaccination Acts, Contagious Diseases Acts, notification and compulsory removal laws and the like; whether they should be allowed to build according to demand, or according to rules like those contained in the Metropolitan Buildings Acts; whether such matters as smoke abatement should be treated as questions of mere private nuisance; whether the dead should be disposed of according to the fancies of their surviving relatives, or on some State-ordained system; whether private persons should be permitted to use and also to abuse public waters by polluting them until such time as they see the necessity of combining to keep them pure; whether the makers and vendors of goods, drugs, beverages, etc., should be untrammelled by any other law than the maxim caveat emptor, or whether the State should analyse these commodities, and punish adulterators; upon all these questions of sanitation and a hundred others of the same kind, opinions differ. I shall devote a separate chapter to the discussion of the adulteration question.
In the interests of Morality, some contend (an enormous majority) that the State should punish bigamy and practices inimical to monogamy, and should prescribe between whom marriages should lawfully be sanctioned. Some of those who admit this, contend that the State is needlessly strict in its prohibitions, e.g. in the case of marriage with the sister of a deceased wife. Some of those who would allow young girls, against their inclinations, to be sacrificed to the greed or ambition of parents or guardians, provided the contract is one of marriage, deny the sufficiency of parental responsibility in the case of similar contracts of a temporary character, even when the young person is a consenting party. This question also is discussed in a separate chapter. Opinions widely differ as to how far the State is warranted in sharing the responsibility with parents, and in standing in loco parentis with respect to orphans. It is also debated whether the suppression of brothels other than disorderly houses is, properly speaking, a State duty; and the same difference extends to the question of public-houses, where drunkenness may (or may not) result in disorder and nuisance. In the interest of morality, the State exercises censorship of plays, though it has not been deemed necessary to continue the precaution in the case of light literature.
What are the conditions under which it is permissible to publish prurient, obscene, and filthy matter in the daily newspapers? As revolting a hash as ever was served up to the public was defended, not so very long ago, on the plea that it was done with the laudable intention of enlisting public opinion on the side of virtue, in an attempt to sweep away one of the more horrible features of society in “Modern Babylon.” I have no intention of reopening this question of motives. The solid fact remains that thousands of young persons were daily dosed with garbage, which must have had some effect upon them of an injurious character. At the time a great outcry was raised against the journal in which these disgusting “revelations” appeared—an outcry, which must now be attributed to the jealousy of those other journals which had no share in the monopoly. That this is the true explanation of the chaste wrath of the majority of the leading newspapers is rendered probable from the fact, that ever since, nearly every one of these same righteous newspapers has ever and anon contained several columns daily of prurient stuff, not one whit less objectionable than that which they condemned. The only difference is that one was a monopoly, while the other was the common property of the press. It is not even pretended that divorce court “revelations” are published for the public good. Not a bit of it. They are not even of public interest. Much stress is laid on the distinction that, whereas the Babylonian narratives were fiction, the divorce court narratives are fact. But this is an irrelevant distinction, quite apart from the fact that in many cases the latter are as ben trovato as the former. Is it contended that it is expedient, as a rule, that all persons should have a fair and open trial, and that any attempt to hide the facts from the public would make it easier to corrupt the jury or the Court? That a trial without public report would approximate to a trial in camera without consent of parties? There is an obvious reply to this. There could be no conceivable objection to the publication of all cases in the technical journals. Medical papers deal with matters which would not be tolerated in papers of general interest. Why should not the same rule apply to legal matters? By all means let the law journals report any and every case of legal interest. But why those who give a penny for the day's news of public and general movements, should have palmed off upon them the nasty gossip and filthy scandal of private families and their mischief-making servants, passes all understanding. Those who are curious in such matters, those who have a personal interest in the parties concerned, as well as those who have to study the question as a rather repulsive case of social pathology—viz. the lawyers—can be trusted to take the trouble to obtain the law papers. Those who do not wish their families to be supplied with Holywell Street literature, have a right to be protected against its subintroduction each morning in the guise of public news. But, of course, any State interference with the freedom of reporting cases in our Courts of Justice would be intolerable, and moreover would be beset with many and grave difficulties: but in my opinion, any leading daily paper which should issue a poster with the item “No Report of Divorce Cases in this paper” would very considerably increase its circulation. The patronage of the Ladies Sneerwell and Scandal would, of course, be lost.
In the matter of gambling, opinions widely differ, and the State seems to comply with them all. It prohibits some kinds of betting and lotteries under heavy penalties. Other kinds, such us betting on race-courses, it tolerates, but refuses to sanction; and other kinds, again, it recognises and sanctions, such as Insurance and Stock Exchange speculations. Probably it may be said that according to the spirit of Scotch jurisprudence a fair bet should be enforced like any other contract, whereas English law would consistently refuse to sanction it. As to which is the best course for the State to adopt, having regard to the general welfare, opinions again differ.
The State is very anxious that the registration of births should be kept regularly; and yet it couples registration and vaccination together in such a way that an objector has only to omit to register his children, and he is at once freed from the unwelcome attentions of the Vaccination Officer. Considering the number of Anti-vaccinists in the country, this seems an insane policy. Anyhow, it seems impolitic to arrange that so soon as a citizen breaks one law of the land, it straightway becomes his interest and his wisest course to break another. If a man will not vaccinate his children, he is a fool to register them. It is the same with the drink laws. More lies have been told about bonâ-fide travelling than any other subject during the last twenty years; and, when necessary, they have been emphasised by perjury.
Coming to State action in the interests of religion, there is great diversity of view. The tendency has clearly been in the direction of diminished Government interference in such matters. People are no longer burned for heresy. Whether heretics should be burnt is still a debated question, but the “Noes” have it. Not so, however, with regard to Sabbath observance, Sunday trading, Sunday amusements, etc. On these points, and on the maintenance of a Church establishment, public opinion seems to be pretty evenly balanced. There still remain on the statute book certain laws relating to oaths, and others relating to blasphemy, which imply that the State considers itself bound to punish offences against what may be called the national religion.
In this very brief survey of existing State functions in England, I have necessarily omitted all reference to whole classes of Government action, and notably to that coming under the head Justice. And I have passed over the whole field of municipal functions, such as road-making and maintaining, paving and cleaning, lighting, bridge-building, the laying of sewers and drains, water supply, fire extinction, the regulation of cemeteries, markets and fairs, etc., etc. In spite of all these omissions, the area surveyed is wide enough to call up doubts in the minds of both parties—Individualists and Socialists—as to whether the happy mean has in all cases been yet hit upon. It may be doubted whether worship of the State will be stimulated by the survey.
For the State is mindful of its own, and it re-membereth its children. Our father, the all-wise, the omnipotent State, has watched over us for generations. What has it done for us? It has made poor laws, and thus brought into existence an army of 170,000 tramps, creeping like lice over the surface of the land. It has suppressed the healthy recreations of the people, and driven them to dens of drink and vice, where they spend eighty millions of their hard-earned wages in trying to squeeze some enjoyment out of life. By its inexorable law of practically indissoluble marriage, it has brought into existence a huge army of prostitutes, and perpetuated the scourge of Tyre. It has permitted its children for a generation to spread the loathsome disease smallpox by inoculation, and then it has compelled them to keep it alive by vaccination. It has stamped out improvements in sanitation by its compulsory sewage system, thus propagating the germs of typhoid and cholera. By its inopportune interference between the workers and their employers, it has stereotyped a moribund system of wagedom, and set back the enfranchisement of labour for generations. It has stifled the electric light, the telephone, and all the latest and greatest inventions. It has artificially bolstered up unwieldy estates, and clogged the wheels of agriculture. It has raised the cost of transport 100 per cent by the creation of monster monopolies, strangling all competition with the Post-Office, and with State-coddled and State-bullied railway companies, water companies, gas companies, and the like. It has well-nigh crushed out the healthy and natural system of education which has already put England at the head of the nations, and made an Englishman the most valuable worker to be found in the market. Finally, by its idiotic restrictions on co-operative enterprise—its law of partnerships and of joint-stock companies—it has diverted millions upon millions of capital from prudent and productive investments into the unproductive coffers of an extravagant State. It has done many other equally wise and paternal things, and it is on the high road to a great many more.
Can no one stave off the impending evil? Must we sink beneath the wave of socialism which is threatening all the civilised nations of the earth? The people? No; they desire it. Their representatives in the House of Commons? No; they have to buy their position by pandering to the most numerous section of their constituencies. The Second Chamber? No; they are trembling for their privileges, and must buy off the enemy by throwing sops to the masses.
To time, and to time alone, must we look as the Saviour of Society. “Fortunately, in the mortality of man lies the Salvation of Truth.” The society of the remote future will be held together on the principle of absolute philosophical anarchy; but at present we are passing through a transitional period, in which we are continually subject to socialistic relapses. At this particular time the attack is a severe one. We shall not touch the bottom until we have universal suffrage, and the sooner we touch the bottom the better. It is always well to know the worst. Democratic socialism is no worse than aristocratic socialism; in some respects the tyranny of the many is less odious; in other respects, it is more hateful than the tyranny of the few. In order to justify our action in combating the one, we must loyally sweep away the other. State religion must go. The Church, as such, must be disestablished and disendowed; but the clergy of the Church must not be despoiled to the extent of a penny-piece. The Second Chamber must be supported as a legislative Court of Appeal; but it must be purged of the bishops, and the hereditary principle must make way for modern arrangements. Neither should the plutocratic principle continue to prevail in the Lower House. Members should be paid for their services, but not at the expense of those who would prefer to see them hanged. Every member of Parliament should be paid what he is worth by his own constituents. Legislation is not required for that.
With regard to the duties of Government or the functions of the State, let us curtail the scope, while insisting for the present on the more rigorous fulfilment of the remainder. The time is not yet ripe for complete individualism. The starving of our defensive forces (army and navy) seems to be a source not only of weakness, but of expense in the long-run. Also, there seems to be too much parsimony in the maintenance of our judicial system; our judges are too few in number; they are ill-paid and overworked. All this is mistaken economy. Justice should be certain, cheap, speedy, and accessible. It is at present none of these. While crimes go unpunished, while honest citizens put up with injuries rather than appeal to the law,—the State, the father of the people, is occupied in reading through all the comedies and burlesques brought out in the London and provincial theatres; it is running after little boys who dare to play pitch-farthing; it is peeping through the chinks in the shutters of public-houses to see that no capable citizen has a glass of beer at the wrong hour; it is going on sledging expeditions to the North Pole or yachting trips in the Antarctic Ocean; it is prescribing cab fares and boat fares; it is holding spelling-bees for fishermen; it is mixing wholesome “squashes” for the operatives in lead works; it is scouring the firmament for new asteroids; it is, or till lately was, writing suitable poetry on the landing of foreign princes on British soil; it is polluting our principal rivers with sewage, and persecuting other people for fishing in the close time. Above all, it is inspecting everybody and everything, with the result that things are very much as before—all but the bill, which has to be paid for the inspection. Let but the State mind its own business thoroughly and exclusively, and the co-operation of sane citizens will accomplish the rest.