Front Page Titles (by Subject) CHAPTER III: the rights of majorities - Law in a Free State
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CHAPTER III: the rights of majorities - Wordsworth Donisthorpe, Law in a Free State 
Law in a Free State (London: Macmillan and Co., 1895).
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the rights of majorities
The doctrine of the Divine Right of the Majority, or, in secular phraseology, the doctrine of “counting heads to save the trouble of breaking them,” can be carried, and is carried, a great deal too far. There are two principal qualifications of the doctrine which are usually lost sight of. Upon these it is important to lay stress, because modern democratic State socialism is based upon their non - recognition. Firstly, the units of society are not equal. Under a system of adult suffrage, it is quite conceivable that on a question of family law nearly all the women might be found voting on one side, and nearly all the men on the other. In such a case it is absurd to pretend that counting heads would be a peaceful substitute for fighting it out. Similarly at the present day, in all democratic countries under a very extended franchise, apart from sentiment, ten rich men count for more, as a fact, than a thousand wage-receivers. It is merely a foolish fiction to pretend that the majority vote is a test of the will of the people; because the will of the people, like the will of an individual animal, is the resultant of forces, operating in various directions. That which the doctrine presumes that we want to ascertain is, What would be the result if each question were fought out? And the answer is certainly not always to be found by counting heads, pro and con.
The second flaw in the doctrine is the false assumption that every one is prepared to fight for that which he desires to obtain—that the desire is uniformly urgent. This is not true. A big dog will seldom attack a little dog in possession of a bone. He desires the bone. So does the little dog. But their motives are not equally urgent. In a state of unorganised anarchy,—anarchy as it is pictured by those who do not understand it,—if two unequally-matched men meet over a prize coveted by both, they do not, as a fact, take each other's measure and decide the question accordingly. The stronger man may be actuated by a weaker desire. He may be less hungry or more averse to trouble and pain. And, in any case, it is probably, on the average, the best economy from his own point of view, to buy off the weaker man by making a division of the prize—not necessarily an equal division, but one satisfactory to the weaker man in view of his inferiority. To apply this consideration to practical politics, it may be true that the majority in this country are favourable, say, to universal vaccination. It does not follow that a compulsory law embodies the will of the people; because every man who is opposed to that law is at least ten times more anxious to gain his end than his adversaries are to gain theirs. He is ready to make far greater sacrifices to attain it. One man rather wishes for what he regards as a slight sanitary safeguard; the other is determined not to submit to a gross violation of his liberty. How differently the two are actuated! One man is willing to pay a farthing in the pound for a desirable object; the other is ready to risk property, and perhaps life, to defeat that object. In such cases as this it is sheer folly to pretend that counting heads is a fair indication of the forces behind.
It is therefore easy to endorse the conclusion reached by an able anarchist, Mr. Victor Yarros, when he says:—
In cases where the issue depends on the number of heads, and is pre-detennined in favour of the majority, it is no doubt wise and desirable to avoid violence by ascertaining and submitting to the inevitable, but we know very well that minorities are not necessarily doomed to defeat in their struggle with majorities under the present conditions rind means of warfare. Even individuals can, single-handed, withstand majorities and defy them. The counting of heads can no longer be regarded as a sure way of determining the probable outcome. Unless the majority, duly and prudently appreciating this important change, with all its bearings, agrees to accept certain principles, and to respect the rights of minorities, cases may arise in which object-lessons as to the power and influence of minorities in modern times shall be found necessary.
Thus far we are agreed. We advise majorities, for their own sakes, not to bring the minorities to bay. The result may be either painful or humiliating. It is not wise to threaten what you do not mean to perform. Minorities mean business: majorities frequently do not.
But I cannot agree with the same writer that “any method is justifiable in our war against the aggressive State.” It would be exceedingly wrong of Mr. Yarros to burn down an hotel for the purpose of extinguishing an enemy, even though the success of his method was assured. Similarly, it is usually wrong to make war on the State by throwing bombs, even in self-defence, or by using dynamite. It is fair to terrorise one's oppressors, but it is not fair to terrorise one's friends, for the sake of getting at one's foes. “If,” says Mr. Yarros, “I were confronted with the alternative of adopting either dynamite or ballot-box force as a weapon against the State, I should choose dynamite without a moment's hesitation.” With equal readiness I should choose the ballot-box. Breaking heads is the final test of right. Admitted. But, as Mr. Justice Stephens said, “We count them to save the trouble.” And that process is the voting-box. Surely it is not always a foolish bargain to count soldiers and adjudicate the battle in accordance with the respective numbers concentrated in the field.
Once upon a time I said that “when the law is broken, it is the bounden duty of the Executive to punish the law-breaker, even when the law is bad and the law-breaker is a conscientious and public-spirited citizen. Any sign or hint that private will may overpower the public will, as embodied in the laws, is the worst and most fatal sin that a Government can commit.” Quoting this passage, a friend wrote: “Kindly allow me to ask if you would give the private citizen correlative advice—namely, that it is his bounden duty to obey the law, good or bad.” I cannot see that this is the correlative advice. My advice to the tiger in the jungle is to kill and subdue his rivals, and to do the best for himself. Surely the correlative advice to his rivals is not to submit and die. The correlation is expressed in the saying, “Pull Devil, pull Baker,” and not in the saying, “Pull Devil, yield Baker.” When Society and the Individual differ, each must try to overpower the other if possible. If the power is very unequal, prudence, and prudence only, would dictate compromise, or even submission. My friend illustrated his position by a reference to the English and German vaccination laws. In Germany, he says, any resistance on the part of the parents is punished by imprisonment, while their children are forcibly vaccinated. “Now, I wish to know whether you would consider as heinous and morally culpable the conduct of an administrator of such a law, who allowed a parent to disobey that law on the ground that he conscientiously believed the operation would imperil his child's health, and perhaps hurry it to the grave?”I answered frankly, Yes. If such were the law in England, I should censure the administrator who shrank from enforcing it to the letter. But I should censure far more severely the craven cur who submitted to such a law. In my opinion it would be the duty of the administrators of the law to carry it out, and the duty of the citizen to shoot the scoundrel who attempted to perpetrate the outrage. Of course such a law could not be enacted in England; but if, by an accident, such an Act should be passed, the consequences of the conflict between the State and the citizens would be such as to bring about its repeal after the first catastrophe. The servile docility of Germans is a standing psychological puzzle. Clearly, the citizen who takes upon himself to quarrel with the State must count the cost and take the consequences. He must not complain if he gets the worst of it. But those who are appointed by the Odd Man to carry out the laws (such as they are) are false to their trust if they fail to do so.
The correspondence appeared in a paper called Jus, of which I was then editor, and was followed by a characteristic letter from the late Lord Bramwell:—
Sir—In Jus of 18th November appeared a paragraph to which I respectfully object. I regret to see it in a publication entitled to authority from its two qualities of ability and honesty. You say, speaking of children being forcibly vaccinated, “If the German vaccination law were the law in England we should censure the administrator who shrank from enforcing it to the letter. But we should censure far more severely the craven cur who submitted to such a law. In our opinion it would be the duty of the administrators of the law to carry it out, and the duty of the citizen to shoot the scoundrel who attempted to perpetrate the outrage.”
How can this be? How can a man be a scoundrel for doing his duty? How can it be the duty of any man to shoot him for so doing? Please to remember that you do not strengthen your case by calling names. I should be the craven cur you speak of. I should think it my duty to obey the law or leave the country where it existed. The sovereign power honestly and for the good of the community enact a law. Surely it is the duty of the citizen or subject to obey it. Why may not every man disobey any law he disapproves of, if you are right? There are plenty of conscientious crimes, but we punish them of necessity.—Yosurs, etc.,
My reply setting forth the ethical position was this:—The whole duty of man is his duty to himself. Every apparent duty to others is merely derivative; and the duty of the citizen to obey the law is merely based on the self-regarding prudence which warns him not to resist an overpowering force. I cannot accept the doctrine of the divine right of the Odd Man. It is our duty to defer to the will of the majority, when the evil consequences of opposing it are probably greater than the evil consequences of conforming. But in certain cases the balance is the other way, and then it is surely the duty of the citizen to disobey the law, especially if he thinks that he may be able to overmaster the majority. And this is not invariably a difficult task. In the case of a father honestly convinced that vaccination is injurious to health, and exceedingly immoral withal, I still feel that he would be justified in resisting State coercion. I quite admit that probably he would be wise to leave the country rather than resort to violence, because he would almost certainly get the worst of it,—but for that reason only. Otherwise I cannot see why he should leave the country in preference to turning the majority out, or making their lives such a misery and a torture to them that they would go of their own accord. I will not submit to injury merely because it is done in the name of a large crowd—that is, not if I can help it. There I claim the right to the luxury of revenge.
A hired assassin, one who enters into a contract with A to kill B, is not really actuated by malice, and it may be said that it is his duty to fulfil his contract. The title of “scoundrel” should be reserved for his principal, and not applied to the agent. So it might be urged. I am not quite clear that vicarious villainy is to be condoned merely by reason of the fact that the principals are a majority of the people. Thus, if the State does wrong, or proposes to do wrong, its agents should ask themselves whether they are prepared to accept the responsibility, or whether they ought to resign. Lord Bramwell said that, as a citizen, he would either obey the law or leave the country. He would probably, therefore, as an administrator, either carry out the law or resign. And that duty is just what I was anxious to insist on. But then an administrator can always resign, whereas a citizen cannot always leave the country. In that case the choice lies between submitting to the tyranny of the Odd Man or fighting against, superior force. For my part I do not quite admit the claim of the majority to the country. Upon what right does it rest? Simply upon the probable superiority, in brute force, of the larger number. But it must not be forgotten that the stronger will often yield to the weaker when the prize is not worth fighting for. In a battle between a dog and a rat, the dog sometimes retires. Now, this is because the rat is fighting for his life, and the dog is fighting for fun. Similarly, if a determined minority show their teeth; if a few of their members sacrifice themselves for the—cause, and hurt the majority—hurt them badly, make them uncomfortable, fill them with fear—the many will frequently give way. The game is not worth the candle if they have to suffer so much. Now this is true not only in a bad cause but in a good one. Religious tolerance in this country was won by the men in the fire. Say what we will, the Irish agitation has made what progress it has made, by appealing to the fears of our rulers,—some of them.. Walking about with half-a-dozen detectives before and behind is a great strain on the moral fibre of a man. Hidden stores of dynamite-perhaps next door—moonlight raids—occasional assassins—all conspire to make the easy-going very anxious to be on the side of these hateful forces. Their frame of mind is like that of the quaking wretches who are said to pray to the devil. In short, if a resolute minority can do so much in one cause, why not in another? And in any case it is surely their duty to resist to the bitter end, though it may not be expedient. At all events it will be admitted that if the doctrine of passive obedience to the Odd Man had been universally held by our forefathers, there would have been no Smithfield fires to light the way to liberty.
An agent cannot shirk the responsibility of wrongful acts by pleading that his principal is Legion. Just as a crowd of fools do not make a wise man, so the fact that the bullies are in a majority does not convert their arbitrary rule into liberty. At the same time, the proper word to describe one who carries out a bad law is perhaps not “scoundrel.” I will not substitute a more suitable term, but leave it to lovers of freedom to christen the hired assassin of their liberties for themselves. As to the duty of the citizen to conform to the laws, there is little doubt that is as sacred as any other ethical middle principle. As a general rule of conduct it is sound. Let us avoid casuistry. When is it right to lie? When to steal? When to kill? Similarly, the question, When is it right to break the laws? may be left to casuists. The general answer is, Never. And it is a good answer. The exceptions are rare, I will, however, just quote one authority on the point. Emerson says: “Good men must not obey the laws too well.” He elsewhere says: “Any laws but those which men make for themselves are laughable. This is the history of governments,—one man does something which is to bind another. A man who cannot be acquainted with me, taxes me; looking from afar at me, ordains that a part of my labour shall go to this or that whimsical end, not as I, but as he happens to fancy. Behold the consequence. Of all debts, men are least willing to pay the taxes. What a satire is this on government! Everywhere they think they get their money's worth, except for these. The less government we have, the better; the fewer laws, and the less confided power.”