Law in a free state E-Book

Wordsworth Donisthorpe

• Herausgeber: Jazzybee Verlag
• Kategorie: Geisteswissenschaft
• Sprache: Englisch

Seitenzahl: 410

Veröffentlichungsjahr: 2019

Beschreibung

Addressed to the large body of English men who, while inclined to individualism,'' inconsistently appeal to socialism for the attainment of certain ends which at first sight seem to be unattainable under a regime of freedom." Questions of libel, of cruelty to animals, of copyright, of adulteration, of the relation of the sexes, of rights over land, of nuisance and many others. Mr. Donisthorpe considers difficult to solve straight off on the principle of equal liberty. Still that they may be so solved he shows in nine chapters which discuss many social questions from both the Individualists and Socialists standpoint.

Leseprobe

Law In A Free State

WORDSWORTH DONISTHORPE

Law in a free state, W. Donisthorpe

Jazzybee Verlag Jürgen Beck

86450 Altenmünster, Loschberg 9

Deutschland

ISBN: 9783849653477

www.jazzybee-verlag.de

[email protected]

CONTENTS:

PREFACE.. 1

CHAPTER I: DUTIES OF THE STATE.. 2

CHAPTER II: THE LIMITS OF LIBERTY.. 27

CHAPTER III: THE RIGHTS OF MAJORITIES. 55

CHAPTER IV: ADULTERATION.. 60

CHAPTER V: EDUCATION AND INSTRUCTION.. 72

CHAPTER VI: MARRIAGE.. 82

CHAPTER VII: STATUS OF CHILDREN.. 99

CHAPTER VIII: THE FUTURE OF LABOUR.. 118

CHAPTER IX: THE WOES OF A POLITICIAN.. 128

FOOTNOTES:140

PREFACE

Twenty years ago I took a census of the individualists in this country, and I found that they could all be seated comfortably in a Bayswater 'bus. Twelve years ago I took another, and I found that their number had increased to about three hundred. This increase I attributed mainly to the teachings of Mr. Herbert Spencer. At the present time the individualists of England may be counted by thousands, and perhaps tens of thousands. I attribute this further increase partly to the same cause, partly to the efforts of the Personal Rights Defence Association and the Liberty and Property Defence League, and partly to the visible evil effects of the practical State socialism of the Legislature.

In addition to these believers in the gospel of liberty, there is a large body of Englishmen (possibly half the population) who are inclined in that direction, as most Englishmen have been since they deserved the name, and who, nevertheless, inconsistently appeal to socialism for the attainment of certain ends which at first sight seem to be unattainable under a régime of freedom.

It is to this section of the public that these pages are addressed. I must therefore crave the indulgence of all philosophical anarchists if they find much herein which they already know very well. But even these latter will admit that there are many “nuts” which individualists find very hard to “crack.” Questions of libel, of cruelty to animals, of copyright, of adulteration, of the relation of the sexes, of rights over land, of nuisance and many others, are difficult to solve straight off on the principle of equal liberty. The following nine chapters are offered to the public as the best “nutcrackers” which I am able to turn out of this workshop. Some semi-scientific savants are wont to declare that the photography of colours, flying machines, artificial indiarubber, and many hitherto unsolved problems may be easily accomplished by applying “electricity,” but how to apply it they do not tell us. Similarly, certain individualists of the absolutist sect propose to solve all social problems by applying the principle of liberty. But there they rest. They will not, or cannot, tell us how to do it. If I have succeeded to any, even the slightest, extent in supplying this needed explanation, I am content. I offer my nutcrackers for what they may be worth.

I have to thank Mr. John Murray for kindly permitting me to republish Chapter II., which has already appeared in A Plea for Liberty, together with a number of essays by other writers. Part of Chapter VI. has also been circulated by a certain philanthropic society, and various other scraps and pages have appeared scattered abroad in sundry reviews, magazines, and journals. But, taken as a whole, the bulk is new.

WORDSWORTH DONISTHORPE.

CHAPTER I: 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 facieprobability 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 absurdumof 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 practicalguidance 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.