Vices are not crimes
A Vindication of Moral Liberty
by Lysander Spooner
I
Vices are those acts by which a man harms himself or his property.
Crimes are those acts by which one man harms the person or property
of another.
Vices are simply the errors which a man makes in his search after
his own happiness. Unlike crimes, they imply no malice toward
others, and no interference with their persons or property.
In vices, the very essence of crime -- that is, the design to injure
the person or property of another -- is wanting.
It is a maxim of the law that there can be no crime without a
criminal intent; that is, without the intent to invade the person or
property of another. But no one ever practises a vice with any such
criminal intent. He practices his vice for his own happiness solely,
and not from any malice toward others.
Unless this clear distinction between vices and crimes be made and
recognized by the laws, there can be on earth no such thing as
individual right, liberty, or property, and the corresponding and
coequal rights of another man to the control of his own person and
property.
For a government to declare a vice to be a crime, and to punish it
as such, is an attempt to falsify the very nature of things. It is
as absurd as it would be to declare truth to be falsehood, or
falsehood truth.
II
Every voluntary act of a man's life is either virtuous or vicious.
That is to say, it is either in accordance, or in conflict, with
those natural laws of matter and mind, on which his physical,
mental, and emotional health and well-being depend. In other words,
every act of his life tends, on the whole, either to his happiness,
or to his unhappiness. No single act in his whole existence is
indifferent.
Furthermore, each human being differs in his physical, mental, and
emotional constitution, and also in the circumstances by which he is
surrounded, from every other human being. Many acts, therefore, that
are virtuous, and tend to happiness, in the case of one person, are
vicious, and tend to unhappiness, in the case of another person.
Many acts, also, that are virtuous, and tend to happiness, in the
case of one man, at one time, and under one set of circumstances,
are vicious, and tend to unhappiness, in the case of the same man,
at another time, and under other circumstances.
III
To know what actions are virtuous, and what vicious -- in other
words, to know what actions tend, on the whole, to happiness, and
what to unhappiness -- in the case of each and every man, in each
and all the conditions in which they may severally be placed, is the
profoundest and most complex study to which the greatest human mind
ever has been, or ever can be, directed. It is, nevertheless, the
constant study to which each and every man -- the humblest in
intellect as well as the greatest -- is necessarily driven by the
desires and necessities of his own existence. It is also the study
in which each and every person, from his cradle to his grave, must
necessarily form his own conclusions; because no one else knows or
feels, or can know or feel, as he knows and feels, the desires and
necessities, the hopes, and fears, and impulses of his own nature,
or the pressure of his own circumstances.
IV
It is not often possible to say of those acts that are called vices,
that they really are vices, except in degree. That is, it is
difficult to say of any actions, or courses of action, that are
called vices, that they really would have been vices, if they had
stopped short of a certain point. The question of virtue or vice,
therefore, in all such cases, is a question of quantity and degree,
and not of the intrinsic character of any single act, by itself.
This fact adds to the difficulty, not to say the impossibility, of
any one's -- except each individual for himself -- drawing any
accurate line, or anything like any accurate line, between virtue
and vice; that is, of telling where virtue ends, and vice begins.
And this is another reason why this whole question of virtue and
vice should be left for each person to settle for himself.
V
Vices are usually pleasurable, at least for the time being, and
often do not disclose themselves as vices, by their effects, until
after they have been practised for many years; perhaps for a
lifetime. To many, perhaps most, of those who practise them, they do
not desclose themselves as vices at all during life. Virtues, on the
other hand, often appear so harsh and rugged, they require the
sacrifice of so much present happiness, at least, and the results,
which alone prove them to be virtues, are often so distant and
obscure, in fact, so absolutely invisible to the minds of many,
especially of the young that, from the very nature of things, there
can be no universal, or even general, knowledge that they are
virtues. In truth, the studies of profound philosophers have been
expended -- if not wholly in vain, certainly with very small results
-- in efforts to draw the lines between the virtues and the vices.
If, then, it became so difficult, so nearly impossible, in most
cases, to determine what is, and what is not, vice; and especially
if it be so difficult, in nearly all cases, to determine where
virtue ends, and vice begins; and if these questions, which no one
can really and truly determine for anybody but himself, are not to
be left free and open fro experiment by all, each person is deprived
of the highest of all his rights as a human being, to wit: his right
to inquire, investigate, reason, try experiments, judge, and
ascertain for himself, what is, to him, virtue, and what is, to him,
vice; in other words: what, on the whole, conduces to his happiness,
and what, on the whole, tends to his unhappiness. If this great
right is not to be left free and open to all, then each man's whole
right, as a reasoning human being, to "liberty and the pursuit of
happiness," is denied him.
VI
We all come into the world in ignorance of ourselves, and of
everything around us. By a fundamental law of our natures we are all
constantly impelled by the desire of happiness, and the fear of
pain. But we have everything to learn, as to what will give us
happiness, and save us from pain. No two of us are wholly alike,
either physically, mentally, or emotionally; or, consequently, in
our physical, mental, or emotional requirements for the acquisition
of happiness, and the avoidance of unhappiness. No one of us,
therefore can learn this indispensable lesson of happiness and
unhappiness, of virtue and vice, for another. Each must learn it for
himself. To learn it, he must be at liberty to try all experiments
that comment themselves to his judgement. Some of his experiments
succeed, and, because they succeed, are called virtues; others fail,
and, because they fail, are called vices. He gathers wisdom as much
from his failures as from his successes; from his so-called vices,
as from his so-called virtues. Both are necessary to his acquisition
of that knowledge -- of his own nature, and of the world around him,
and of their adaptations or non-adaptations to each other -- which
shall show him how happiness is acquired, and pain avoided. And,
unless he can be permitted to try these experiments to his own
satisfaction, he is restrained from the acquisition of knowledge,
and, consequently, from pursuing the great purpose and duty of his
life.
VII
A man is under no obligation to take anybody's word, or yield to
anybody's authority, on a matter so vital to himself, and in regard
to which no one else has, or can have, any such interest as he. He
cannot, if he would, safely rely upon the opinions of other men,
because he finds that the opinions of other men do not agree.
Certain actions, or courses of action, have been practised by many
millions of men, through successive generations, and have been held
by them to be, on the whole, conducive to happiness, and therefore
virtuous. Other men, in other ages or counties, or under other
conditions, have held, as the result of their experience and
observation, that these actions tended, on the whole, to
unhappiness, and were therefore vicious. The question of virtue or
vice, as already remarked in a previous section, has also been, in
most minds, a question of degree; that is, of the extent to which
certain actions should be carried; and not of the intrinsic
character of any single act, by itself. The questions of virtue and
vice have therefore been as various, and, in fact, as infinite, as
the varieties of mind body, and condition of the different
individuals inhabiting the globe. And the experience of ages has
left an infinite number of these questions unsettled. In fact, it
can scarcely be said to have settled any of them.
VIII
In the midst of this endless variety of opinion, what man, or what
body of men, has the right to say, in regard to any particular
action, or course of action, "we have tried this experiment, and
determined every question involved in it? We have determined it, not
only for ourselves, but for all others? And, as to all those who are
weaker than we, we will coerce them to act in obedience to our
conclusions? We will suffer no further experiment or inquiry by any
one, and, consequently, no further acquisition of knowledge by
anybody?"
Who are the men who have the right to say this? Certainly there are
none such. The men who really do say it are either shameless
impostors and tyrants, who would stop the progress of knowledge, and
usurp absolute control over the minds and bodies of their fellow
men; and are therefore to be resisted instantly, and to the last
extent; or they are themselves too ignorant of their own weaknesses,
and of their true relations to other men, to be entitled to any
other consideration then sheer pity or contempt.
We know, however, that there are such men as these in the world.
Some of them attempt to exercise their power only within a small
sphere, to wit, upon their children, their neighbors, their
townsmen, and their countrymen. Others attempt to exercise it on a
larger scale. For example, an old man at Rome, aided by a few
subordinates, attempts to decide all questions of virtue and vice;
that is, of truth or falsehood, especially in matters of religion.
He claims to know and teach what religious ideas and practices are
conducive, or fatal, to a man's happiness, not only in this world,
but in that which is to come. He claims to be miraculously inspired
for the performance of this work; thus virtually acknowledging, like
a sensible man, that nothing short of miraculous inspiration would
qualify him for it. This miraculous inspiration, however, has been
ineffectual to enable him to settle more than a very few questions.
The most important to which common mortals can attain, is an
implicit belief in his (the pope's) infallibility! and, secondly,
that the blackest vices of which they can be guilty are to believe
and declare that he is only a man like the rest of them!
It required some fifteen or eighteen hundred years to enable him to
reach definite conclusions on these two vital points. Yet it would
seem that the first of these must necessarily be preliminary to his
settlement of any other questions; because, until his own
infallibility is determined, he can authoritatively decide nothing
else. He has, however, heretofore attempted or pretended to settle a
few others. And he may, perhaps, attempt or pretend to settle a few
more in the future, if he shall continue to find anybody to listen
to him. But his success, thus far, certainly does not encourage the
belief that he will be able to settle all questions of virtue and
vice, even in his peculiar department of religion, in time to meet
the necessities of mankind. He, or his successors, will undoubtedly
be compelled, at no distant day, to acknowledge that he has
undertaken a task to which all his miraculous inspiration was
inadequate; and that, of necessity, each human being must be left to
settle all questions of this kind for himself. And it is not
unreasonable to expect that all other popes, in other and lesser
spheres, will some time have cause to come to the same conclusion.
No one, certainly, not claiming supernatural inspiration, should
undertake a task to which obviously nothing less than such
inspiration is adequate. And, clearly, no one should surrender his
own judgement to the teachings of others, unless he be first
convinced that these others have something more than ordinary human
knowledge on this subject.
If those persons, who fancy themselves gifted with both the power
and the right to define and punish other men's vices, would but turn
their thoughts inwardly, they would probably find that they have a
great work to do at home; and that, when that shall have been
completed, they will be little disposed to do more towards
correcting the vices of others, than simply to give to others the
results of their experience and observation. In this sphere their
labors may possibly be useful; but, in the sphere of infallibility
and coercion, they will probably, for well-known reasons, meet with
even less success in the future than such men have met with in the
past.
IX
It is now obvious, from the reasons already given, that government
would be utterly impracticable, if it were to take cognizance of
vices, and punish them as crimes. Every human being has his or her
vices. Nearly all men have a great many. And they are of all kinds;
physiological, mental, emotional; religious, social, commercial,
industrial, economical, etc., etc. If government is to take
cognizance of any of these vices, and punish them as crimes, then,
to be consistent, it must take cognizance of all, and punish all
impartially. The consequence would be, that everybody would be in
prison for his of her vices. There would be no one left outside to
lock the doors upon those within. In fact, courts enough could not
be found to try the offenders, nor prisons enough built to hold
them. All human industry in the acquisition of knowledge, and even
in acquiring the means of subsistence, would be arrested: for we
should all be under constant trial or imprisonment for our vices.
But even if it were possible to imprison all the vicious, our
knowledge of human nature tells us that, as a general rule, they
would be far more vicious in prison than they ever have been out of
it.
X
A government that shall punish all vices impartially is so obviously
an impossibility, that nobody was ever found, or ever will be found,
foolish enough to propose it. The most that any one proposes is,
that government shall punish some one, or at most a few, of what he
esteems the grossest of them. But this discrimination is an utterly
absurd, illogical, and tyrannical one. What right has any body of
men to say, "The vices of other men we will punish; but our own
vices nobody whall punish? We will restrain other men from seeking
their own happiness, according to their own notions of it; but
nobody shall restrain us from seeking our own happiness, according
to our own notions of it? We will restrain other men from acquiring
any experimental knowledge of what is conducive or necessary to
their own happiness; but nobody shall restrain us from acquiring an
experimental knowledge of what is conducive or necessary to our own
happiness?"
Nobody but knaves or blockheads ever thinks of making such absurd
assumptions as these. And yet, evidently, it is only upon such
assumptions that anybody can claim the right to punish the vices of
others, and at the same time claim exemption from punishment for his
own.
XI
Such a thing as a government, formed by voluntary association, would
never have been thought of, if the object proposed had been the
punishment of all vices, impartially; because nobody wants such an
institution, or would voluntarily submit to it. But a government,
formed by voluntary association, for the punishment of all crimes,
is a reasonable matter; because everybody wants protection for
himself against all crimes by others, adn also acknowledges the
justice of his own punishment, if he commits a crime.
XII
It is a natural impossibility that a government should have a right
to punish men for their vices; because it is impossible that a
government should have any rights, except such as the individuals
composing it had previously had, as individuals. They could not
delegate to a government any rights which they did not themselves
possess. They could not contribute to the government any rights,
except such as they themselves possessed as individuals. Now, nobody
but a fool or an impostor pretends that he, as an individual, has a
right to punish other men for their vices. But anybody and everybody
have a natural right, as individuals, to punish other men for their
crimes; for everybody has a natural right not only to defend his own
person and property against aggressors, but also to go to the
assistance and defence of everybody else, whose person or property
is invaded. The natural right of each individual to defend his own
person and property against an aggressor, and to go to the
assistance and defence of every one else whose person or property is
invaded, is a right without which men could not exist on the earth.
And government has no rightful existence, except in so far as it
embodies, and is limited by, this natural right of individuals. But
the idea that each man has a natural right to decide what are
virtues, and what are vices -- that is, what contributes to that
neighbor's happiness, and what do not -- and to punish him for all
that do not contribute to is; is what no on e ever had the impudence
or folly to assert. It is only those who claim that government has
some rightful power, which no individual or individuals ever did, or
ever could, delegate to it, that claim that government has any
rightful power to punish vices.
It will do for a pope or a king -- who claims to have received
direct authority from Heaven, to rule over his fellowmen -- to claim
the right, as the viceregent of God, to punish men for their vices;
but it is a sheer and utter absurdity for any government, claiming
to derive its power wholly from the grant of the governed, to claim
any such power; because everybody knows that the governed never
would grant it. For them to grant it would be an absurdity, because
it would be granting away their own right to seek their own
happiness; since to grant away their right to judge of what will be
for their happiness, is to grant away all their right to pursue
their own happiness.
XIII
We can now see how simple, easy, and reasonable a matter is a
government for the punishment of crimes, as compared with one for
the punishment of vices. Crimes are few, and easily distinguished
from all other acts; and mankind are generally agreed as to what
acts are crimes. Whereas vices are innumerable; and no two persons
are agreed, except in comparatively few cases, as to what are vices.
Furthermore, everybody wishes to be protected, in his person and
property, against the aggressions of other men. But nobody wishes to
be protected, either in his person or property, against himself;
because it is contrary to the fundamental laws of human nature
itself, that any one should wish to harm himself. He only wishes to
promote his own happiness, and to be his own judge as to what will
promote, and does promote, his own happiness. This is what every one
wants, and has a right to, as a human being. And though we all make
many mistakes, and necessarily must make them, from the imperfection
of our knowledge, yet these mistakes are no argument against the
right; because they all tend to give us the very knowledge we need,
and are in pursuit of, and can get in no other way.
The object aimed at in the punishment of crimes, therefore, is not
only wholly different from, but it is directly opposed to, that
aimed at in the punishment of vices.
The object aimed at in the punishment of crimes is to secure, to
each and every man alike, the fullest liberty he possibly can have
-- consistently with the equal rights of others -- to pursue his own
happiness, under the guidance of his own judgement, and by the use
of his own property. On the other hand, the object aimed at in the
punishment of vices, is to deprive every man of his natural right
and liberty to pursue his own happiness, under the guidance of his
own judgement, and by the use of his own property.
These two objects, then, are directly opposed to each other. They
are as directly opposed to each other as are light and darkness, or
as truth and falsehood, or as liberty and slavery. They are utterly
incompatible with each other; and to suppose the two to be embraced
in one and the same government, is an absurdity, an impossibility.
It is to suppose the objects or a government to be to commit crimes,
and to prevent crimes; to destroy individual liberty, and to secure
individual liberty.
XIV
Finally, on this point of individual liberty: Every man must
necessarily judge and determine for himself as to what is conducive
and necessary to, and what is destructive of, his own well-being;
because, if he omits to perform this task for himself, nobody else
can perform it for him. And nobody else will even attempt to perform
it for him, except in very few cases. Popes, and priests, and kings
will assume to perform it for him, in certain cases, if permitted to
do so. But they will, in general, perform it only in so far as they
can minister to their own vices and crimes, by doing it. They will,
in general, perform it only in so far as they can make him their
fool and their slave. Parents, with better motives, no doubt, than
the others, too often attempt the same work. But in so far as they
practise coercion, or restrain a child from anything not really and
seriously dangerous to himself, they do him a harm, rather than a
good. It is a law of Nature that to get knowledge, and to
incorporate that knowledge into his own being, each individual must
get it for himself. Nobody, not even his parents, can tell him the
nature of fire, so that he will really know it. He must himself
experiment with it, and be burnt by it, before he can know it.
Nature knows, a thousand times better than any parent, what she
designs each individual for, what knowledge he requires, and how he
must get it. She knows that her own processes for communicating that
knowledge are not only the best, but the only ones that can be
effectual.
The attempts of parents to make their children virtuous are
generally little else than attempts to keep them in ignorance of
vice. They are little else than attempts to tach their children to
know and prefer truth, by keeping them in ignorance of falsehood.
They are little else than attempts to make them seek and appreciate
health, by keeping them in ignorance of disease, and of everything
that will cause disease. They are little else than attempts to make
their children love the light, by keeping them in ignorance of
darkness. In short, they are little else than attempts to make their
children happy, by keeping them in ignorance of everything that
causes them unhappiness.
In so far as parents can really aid their children in the latter's
search after happiness, by simply giving them the results of their
(the parents') own reason and experience, it is all very well, and
is a natural and appropriate duty. But to practise coercion in
matters of which the children are reasonably competent to judge for
themselves, is only an attempt to keep them in ignorance. And this
is as much a tyranny, and as much a violation of the children's
right to acquire knowledge for themselves, and such knowledge as
they desire, as is the same coercion when practised upon older
persons. Such coercion, practised upon children, is a denial of
their right to develop the faculties that Nature has given them, and
to be what Nature designs them to be. It is a denial of their right
to themselves, and to the use of their own powers. It is a denial of
their right to acquire the most valuable of all knowledge, to wit,
the knowledge that Nature, the great teacher, stands ready to impart
to them.
The results of such coercion are not to make the children wise or
virtuous, but to make them ignorant, and consequently weak and
vicious; and to perpetuate through them, from age to age, the
ignorance, the superstitions, the vices, and the crimes of the
parents. This is proved by every page of the world's history.
Those who hold opinions opposite to these, are those whose false and
vicious theologies, or whose own vicious general ideas, have taught
them that the human race are naturally given to evil, rather than
good; to the false, rather than the true; that mankind do not
naturally turn their eyes to the light; that they love darkness,
rather than light; and that they find their happiness only in those
things that tend to their misery.
XV
But these men, who claim that government shall use its power to
prevent vice, will say, or are in the habit of saying, "We
acknowledge the right of an individual to seek his own happiness in
his own way, and consequently to be as vicious as he pleases; we
only claim that government shall prohibit the sale to him of those
articles by which he ministers to his vice."
The answer to this is, that the simple sale of any article whatever
-- independently of the use that is to be made of the article -- is
legally a perfectly innocent act. The quality of the act of sale
depends wholly upon the quality of the use for which the thing is
sold. If the use of anything is virtuous and lawful, then the sale
of it, for that use, is virtuous and lawful. If the use is vicious,
then the sale of it, for that use, is vicious. If the use is
criminal, then the sale of it, for that use, is criminal. The seller
is, at most, only an accomplice in the use that is to be made os the
article sold, whether the use be virtuous, vicious, or criminal.
Where the use is criminal, the seller is an accomplice in the crime,
and punishable as such. But where the use is only vicious, the
seller is only an accomplice in the vice, and is not punishable.
XVI
But it will be asked, "Is there no right, on the part of government,
to arrest the progress of those who are bent on self-destruction?"
The answer is, that government has no rights whatever in the matter,
so long as these so-called vicious persons remain sane, compos
mentis, capable of exercising reasonable discretion and
self-control; because, so long as they do remain sane, they must be
allowed to judge and decide for themselves whether their so-called
vices really are vices; whether they really are leading them to
destruction; and whether, on the whole, they will go there or not.
When they shall become insane, non compos mentis, incapable of
reasonable discretion or self-control, their friends or neighbors,
or the government, must take care of them, and protect them from
harm, and against all persons who would do them harm, in the same
way as if their insanity had come upon them from any other cause
than their supposed vices.
But because a man is supposed, by his neighbors, to be on the way to
self-destruction, from his vices, it does not, therefore, follow
that he is insane, non compos mentis, incapable of reasonable
discretion and self-control, within the legal meaning of those
terms. Men and women may be addicted to very gross vices, and to a
great many of them -- such as gluttony, drunkenness, prostitution,
gambling, prize-fighting, tobacco-chewing, smoking, and snuffing,
opium-eating, corset-wearing, idleness, waste of property, avarice,
hypocrisy, etc., etc. -- and still be sane, compos mentis, capable
of reasonable discretion and self-control, within the meaning of the
law. And so long as they are sane, they must be permitted to control
themselves and their property, and to be their own judges as to
where their vices will finally lead them. It may be hoped by the
lookers-on, in each individual case, that the vicious person will
see the end to which he is tending, and be induced to turn back.
But, if he chooses to go on to what other men call destruction, he
must be permitted to do so. And all that can be said of him, so far
as this life is concerned, is, that he made a great mistake in his
search after happiness, and that others will do well to take warning
by his fate. As to what may be his condition in another life, that
is a theological question with which the law, in this world, has no
more to do than it has with any other theological question, touching
men's condition in a future life.
If it be asked how the question of a vicious man's sanity or
insanity is to be determined? The answer is, that it is to be
determined by the same kinds of evidence as is the sanity or
insanity of those who are called virtuous; and not otherwise. That
is, by the same kinds of evidence by which the legal tribunals
determine whether a man should be sent to an asylum for lunatics, or
whether he is competent to make a will, or otherwise dispose of his
property. Any doubt must weigh in favor of his sanity, as in all
other cases, and not of his insanity.
If a person really does become insane, non compose mentis, incapable
of reasonable discretion or self-control, it is then a crime, on the
part of other men, to give to him or sell to him, the means of
self-injury.1 There are no crimes more easily punished, no cases in
which juries would be more ready to convict, than those where a sane
person should sell or give to an insane one any article with which
the latter was likely to injure himself.
XVII
But it will be said that some men are made, by their vices,
dangerous to other persons; that a drunkard, for example, is
sometimes quarrelsome and dangerous toward his family or others. And
it will be asked, "has the law nothing to do in such a case?"
The answer is, that if, either from drunkenness or any other cause,
a man be really dangerous, either to his family or to other persons,
not only himself may be rightfully restrained, so far as the safety
of other persons requires, but all other persons -- who know or have
reasonable grounds to believe him dangerous -- may also be
restrained from selling or giving to him anything that they have
reason to suppose will make him dangerous.
But because one man becomes quarrelsome and dangerous after drinking
spirituous liquors, and because it is a crime to give or sell liquor
to such a man, it does not follow at all that it is a crime to sell
liquors to the hundreds and thousands of other persons, who are not
made quarrelsome or dangerous by drinking them. Before a man can be
convicted of crime in selling liquor to a dangerous man, it must be
shown that the particular man, to whom the liquor was sold, was
dangerous; and also that the seller knew, or had reasonable grounds
to suppose, that the man would be made dangerous by drinking it.
The presumption of law is, in all cases, that the sale is innocent;
and the burden of proving it criminal, in any particular case, rests
upon the government. And that particular case must be proved
criminal, independently of all others.
Subject to these principles, there is no difficulty convicting and
punishing men for the sale or gift of any article to a man, who is
made dangerous to others by the use of it.
XVIII
But it is often said that some vices are nuisances (public or
private), and that nuisances can be abated and punished.
It is true that anything that is really and legally a nuisance
(either public or private) can be abated and punished. But it is not
true that the mere private vices of one man are, in any legal sense,
nuisances to another man, or to the public.
No act of one person can be a nuisance to another, unless it in some
way obstructs or interferes with that other's safe and quiet use or
enjoyment of what is rightfully his own.
Whatever obstructs a public highway, is a nuisance, and may be
abated and punished. But a hotel where liquors are sold, a liquor
store, or even a grog-shop, so called, no more obstructs a public
highway, than does a dry goods store, a jewelry store, or a
butcher's shop.
Whatever poisons the air, or makes it either offensive or
unhealthful, is a nuisance. But neither a hotel, nor a liquor store,
nor a grog-shop poisons the air, or makes it offensive or
unhealthful to outside persons.
Whatever obstructs the light, to which a man is legally entitled, is
a nuisance. But neither a hotel, nor a liquor store, nor a
grog-shop, obstructs anybody's light, except in cases where a
church, a school-house, or a dwelling house would have equally
obstructed it. On this ground, therefore, the former are no more,
and no less, nuisances than the latter would be.
Some persons are in the habit of saying that a liquorshop is
dangerous, in the same way that gunpowder is dangerous. But there is
no analogy between the two cases. Gunpowder is liable to be exploded
by accident, and especially by such fires as often occur in cities.
For these reasons it is dangerous to persons and property in its
immediate vicinity. But liquors are not liable to be thus exploded,
and therefore are not dangerous nuisances, in any such sense as is
gunpowder in cities.
But it is said, again, that drinking-places are frequently filled
with noisy and boisterous men, who disturb the quiet of the
neighborhood, and the sleep and rest of the neighbors.
This may be true occasionally, though not very frequently. But
whenever, in any case, it is true, the nuisance may be abated by the
punishment of the proprietor and his customers, and if need be, by
shutting up the place. But an assembly of noisy drinkers is no more
a nuisance than is any other noisy assembly . A jolly or hilarious
drinker disturbs the quiet of a neighborhood no more, and no less,
than does a shouting religious fanatic. An assembly of noisy
drinkers is no more, and no less, a nuisance than is an assembly of
shouting religious fanatics. Both of them are nuisances when they
disturb the rest and sleep, or quiet, or neighbors. Even a dog that
is given to barking, to the disturbance of the sleep or quiet of the
neighborhood, is a nuisance.
XIX
But it is said, that for one person to entice another into a vice,
is a crime.
This is preposterous. If any particular act is simply a vice, then a
man who entices another to commit it, is simply an accomplice in the
vice. He evidently commits no crime, because the accomplice can
certainly commit no greater offence than the principal.
Every person who is sane, compos mentis, possessed of reasonable
discretion and self-control, is presumed to be mentally competent to
judge for himself of all the arguments, pro and con, that may be
addressed to him, to persuade him to do any particular act; provided
no fraud is employed to deceive him. And if he is persuaded or
induced to do the act, his act is then his own; and even though the
act prove to be harmful to himself, he cannot complain that the
persuasion or arguments, to which he yielded his assent, were crimes
against himself.
When fraud is practised, the case is, of course, different. If, for
example, I offer a man poison, assuring him that it is a safe and
wholesome drink, and he, on the faith of my assertion, swallows it,
my act is a crime.
Volenti non fit injuria, is a maxim of the law. To the willing, no
injury is done. That is, no legal wrong. And every person who is
sane, compos mentis, capable of exercising reasonable discretion in
judging of the truth or falsehood of the representations or
persuasion to which he yields his assent, is "willing," in the view
of the law,; and takes upon himself the entire responsibility for
his acts, when no intentional fraud has been practised upon him.
This principle, that to the willing no injury is done, has no limit,
except in the case of frauds, or of persons not possessed of
reasonable discretion for judging in the particular case. If a
person possessed of reasonable discretion, and not deceived by
fraud, consents to practise the grossest vice, and thereby brings
upon himself the greatest moral, physical, or pecuniary sufferings
or losses, he cannot allege that he has been legally wronged. To
illustrate this principle, take the case of rape. To have carnal
knowledge of a woman, against her will, is the highest crime, next
to murder, that can be committed against her. but to have carnal
knowledge of her, with her consent, is no crime; but at most, a
vice. And it is usually holden that a female child, of no more than
ten years of age, has such reasonable discretion, that her consent,
even though procured by rewards, or promises of reward, is
sufficient to convert the act, which would otherwise be a high
crime, into a simple act of vice.2
We see the same principle in the case of prize-fighters. If I but
lay one of my fingers upon another man's person, against his will,
no matter how lightly, and no matter how little practical injury is
done, the act is a crime. But if two men agree to go out and pound
each other's faces to a jelly, it is no crime, but only a vice.
Even duels have not generally been considered crimes, because each
man's life is his own, and the parties agree that each may take the
other's life, if he can, by the use of such weapons as are agreed
upon, and in conformity with certain rules that are also mutually
assented to.
And this is a correct view of the matter, unless it can be said (as
it probably cannot), that "anger is madness" that so far deprives
men of their reason as to make them incapable of reasonable
discretion.
Gambling is another illustration of the principle that to the
willing no injury is done. If I take but a single cent of a man's
property, without his consent, the act is a crime. But if two men,
who are compos mentis, possessed of reasonable discretion to judge
of the nature and probable results of their act, sit down together,
and each voluntarily stakes his money against the money of another,
on the turn of a die, and one of them loses his whole estate
(however large that may be), it is no crime, but only a vice.
It is not a crime, even, to assist a person to commit suicide, if he
be in possession of his reason.
It is a somewhat common idea that suicide is, of itself, conclusive
evidence of insanity. But, although it may ordinarily be very strong
evidence of insanity, it is by no means conclusive in all cases.
Many persons, in undoubted possession of their reason, have
committed suicide, to escape the shame of a public exposure for
their crimes, or to avoid some other great calamity. Suicide, in
these cases, may not have been the highest wisdom, but it certainly
was not proof of any lack of reasonable discretion.3 And being
within the limits of reasonable discretion, it was no crime for
other persons to aid it, either by furnishing the instrument or
otherwise. And if, in such cases, it be no crime to aid a suicide,
how absurd to say that, it is a crime to aid him in some act that is
really pleasurable, and which a large portion of mankind have
believed to be useful?
XX
But some persons are in the habit of saying that the use of
spirituous liquors is the great source of crime; that "it fills our
prisons with criminals;" and that this is reason enough for
prohibiting the sale of them.
Those who say this, if they talk seriously, talk blindly and
foolishly. They evidently mean to be understood as saying that a
very large percentage of all the crimes that are committed among
men, are committed by persons whose criminal passions are excited,
at the time, by the use of liquors, and in consequence of the use of
liquors.
This idea is utterly preposterous.
In the first place, the great crimes committed in the world are
mostly prompted by avarice and ambition.
The greatest of all crimes are the wars that are carried on by
governments, to plunder, enslave, and destroy mankind.
The next greatest crimes committed in the world are equally prompted
by avarice and ambition; and are committed, not on sudden passion,
but by men of calculation, who keep their heads cool and clear, and
who have no thought whatever of going to prison for them. They are
committed, not so much by men who violate the laws, as by men who,
either by themselves or by their instruments, make the laws; by men
who have combined to usurp arbitrary power, and to maintain it by
force and fraud, and whose purpose in usurping and maintaining it is
by unjust and unequal legislation, to secure to themselves such
advantages and monopolies as will enable them to control and extort
the labor and properties of other men, and thus impoverish them, in
order to minister to their own wealth and aggrandizement.4 The
robberies and wrongs thus committed by these men, in conformity with
the laws, -- that is, their own laws -- are as mountains to
molehills, compared with the crimes committed by all other
criminals, in violation of the laws.
But, thirdly, there are vast numbers of frauds, of various kinds,
committed in the transactions of trade, whose perpetrators, by their
coolness and sagacity, evade the operation of the laws. And it is
only their cool and clear heads that enable them to do it. Men under
the excitement of intoxicating drinks are little disposed, and
utterly unequal, to the successful practice of these frauds. They
are the most incautious, the least successful, the least efficient,
and the least to be feared, of all the criminals with whom the laws
have to deal.
Fourthly. The professed burglars, robbers, thieves, forgers,
counterfeiters, and swindlers, who prey upon society, are anything
but reckless drinkers. Their business is of too dangerous a
character to admit of such risks as they would thus incur.
Fifthly. The crimes that can be said to be committed under the
influence of intoxicating drinks are mostly assaults and batteries,
not very numerous, and generally not very aggravated. Some other
small crimes, as petty thefts, or other small trespasses upon
property, are sometimes committed, under the influence of drink, by
feebleminded persons, not generally addicted to crime. The persons
who commit these two kinds of crime are but few. They cannot be said
to "fill our prisons"; or, if they do, we are to be congratulated
that we need so few prisons, and so small prisons, to hold them.
The State of Massachusetts, for example, has a million and a half of
people. How many of these are now in prison for crimes -- not for
the vice of intoxication, but for crimes -- committed against
persons or property under the instigation of strong drink? I doubt
if there be one in ten thousand, that is, one hundred and fifty in
all; and the crimes for which these are in prison are mostly very
small ones.
And I think it will be found that these few men are generally much
more to be pitied than punished, for the reason that it was their
poverty and misery, rather than any passion for liquor, or for
crime, that led them to drink, and thus led them to commit their
crimes under the influence of drink.
The sweeping charge that drink "fills our prisons with criminals" is
made, I think, only by those men who know no better than to call a
drunkard a criminal; and who have no better foundation for their
charge than the shameful fact that we are such a brutal and
senseless people, that we condemn and punish such weak and
unfortunate persons as drunkards, as if they were criminals.
The legislators who authorize, and the judges who practise, such
atrocities as these, are intrinsically criminals; unless their
ignorance be such -- as it probably is not -- as to excuse them.
And, if they were themselves to be punished as criminals, there
would be more reason in our conduct.
A police judge in Boston once told me that he was in the habit of
disposing of drunkards (by sending them to prison for thirty days --
I think that was the stereotyped sentence) at the rate of one in
three minutes!, and sometimes more rapidly even than that; thus
condemning them as criminals, and sending them to prison, without
mercy, and without inquiry into circumstances, for an infirmity that
entitled them to compassion and protection, instead of punishment.
The real criminals in these cases were not the men who went to
prison, but the judge, and the men behind him, who sent them there.
I recommend to those persons, who are so distressed lest the prisons
of Massachusetts be filled with criminals, that they employ some
portion, at least, of their philanthropy in preventing our prisons
being filled with persons who are not criminals. I do not remember
to have heard that their sympathies have ever been very actively
exercised in that direction. On the contrary, they seem to have such
a passion for punishing criminals, that they care not to inquire
particularly whether a candidate for punishment really be a
criminal. Such a passion, let me assure them, is a much more
dangerous one, and one entitled to far less charity, both morally
and legally, than the passion for strong drink.
It seems to be much more consonant with the merciless character of
these men to send an unfortunate man to prison for drunkenness, and
thus crush, and degrade, and dishearten him, and ruin him for life,
than it does for them to lift him out of the poverty and misery that
caused him to become a drunkard.
It is only those persons who have either little capacity, or little
disposition, to enlighten, encourage, or aid mankind, that are
possessed of this violent passion for governing, commanding, and
punishing them. If, instead of standing by, and giving their consent
and sanction to all the laws by which the weak man is first
plundered, oppressed, and disheartened, and then punished as a
criminal, they would turn their attention to the duty of defending
his rights and improving his condition, and of thus strengthening
him, and enabling him to stand on his own feet, and withstand the
temptations that surround him, they would, I think, have little need
to talk about laws and prisons for either rum-sellers or
rum-drinkers, or even any other class of ordinary criminals. If, in
short, these men, who are so anxious for the suppression of crime,
would suspend, for a while, their calls upon the government for aid
in suppressing the crimes of individuals, and would call upon the
people for aid in suppressing the crimes of the government, they
would show both their sincerity and good sense in a much stronger
light than they do now. When the laws shall all be so just and
equitable as to make it possible for all men and women to live
honestly and virtuously, and to make themselves comfortable and
happy, there will be much fewer occasions than now for charging them
with living dishonestly and viciously.
XXI
But it will be said, again, that the use of spirituous liquors tends
to poverty, and thus to make men paupers, and burdensome to the
tax-payers; and the this is a sufficient reason why the sale of them
should be prohibited.
There are various answers to this argument.
1. One answer is, that if the fact that the use of liquors tends to
poverty and pauperism, be a sufficient reason for prohibiting the
sale of them, it is equally a sufficient reason for prohibiting the
use of them; for it is the use, and not the sale, that tends to
poverty. The seller is, at most, merely an accomplice of the
drinker. And it is a rule of law, as well as of reason, that if the
principal in any act is not punishable, the accomplice cannot be.
2. A second answer to the argument is, that if government has the
right, and is bound, to prohibit any one act -- that is not criminal
-- merely because it is supposed to tend to poverty, then, by the
same rule, it has the right, and is bound, to prohibit any and every
other act -- though not criminal -- which, in the opinion of the
government, tends to poverty. And, on this principle, the government
would not only have the right, but would be bound, to look unto
every man's private affairs and every persons personal expenditures,
and determine as to which of them did, and which of them did not,
tend to poverty; and to prohibit and punish all of the former class.
A man would have no right to expend a cent of his own property,
according to his own pleasure or judgement, unless the legislature
should be of the opinion that such expenditure would not tend to
poverty.
3. A third answer to the same argument is that if a man does bring
himself to poverty, and even to beggary -- either by his virtues or
his vices -- the government is under no obligation whatever to take
care of him, unless it pleases to do so. It may let him perish in
the street, or depend upon private charity, if it so pleases. It can
carry out its own free will and discretion in the matter; for it is
above all legal responsibility in such a case. It is not,
necessarily, any part of a government's duty to provide for the
poor. A government -- that is, a legitimate government -- is simply
a voluntary association of individuals, who unite for such purposes,
and only for such purposes, as suits them. if taking care of the
poor -- whether they be virtuous or vicious -- be not one of those
purposes, then the government, as a government, has no more right,
and is no more bound, to take care of them, than has or is a banking
company, or a railroad company.
Whatever moral claims a poor man -- whether he be virtuous or
vicious -- may have upon the charity of his fellow-men, he has no
legal claims upon them. He must depend wholly upon their charity, if
they so please. He cannot demand, as a legal right, that they either
feed or clothe him. and he has no more legal or moral claims upon a
government -- which is but an association of individuals -- than he
has upon the same, or any other individuals, in their private
capacity.
Inasmuch, then, as a poor man -- whether virtuous or vicious -- has
no more or other claims, legal or moral, upon a government, for food
or clothing, than he has upon private persons, a government has no
more right than a private person to control or prohibit the
expenditures or actions of an individual, on the ground that they
tend to bring him to poverty.
Mr. A. as an individual, has clearly no right to prohibit any acts
or expenditures of Mr. Z, through fear that such acts or
expenditures may tend to bring him (Z) to poverty, and that he (Z)
may, in consequence, at some future unknown time, come to him (A) in
distress, and ask charity. And if A has no such right, as an
individual, to prohibit any acts or expenditures on the part of Z,
then government, which is a mere association of individuals, can
have no such right.
Certainly no man, who is compos mentis, holds his right to the
disposal and use of his own property, by any such worthless tenure
as that which would authorize any or all of his neighbors -- whether
calling themselves a government or not -- to interfere, and forbid
him to make any expenditures, except such as they might think would
not tend to poverty, and would not tend to ever bring him to them as
a supplicant for their charity.
Whether a man, who is compos mentis, come to poverty, through his
virtues or his vices, no man, nor body of men, can have any right to
interfere with him, on the ground that their sympathy may some time
be appealed to in his behalf; because, if it should be appealed to,
they are at perfect liberty to act their own pleasure or discretion
as to complying with his solicitations.
This right to refuse charity to the poor -- whether the latter be
virtuous or vicious -- is one that governments always act upon. No
government makes any more provision for the poor than it pleases. As
a consequence, the poor are left to suffer sickness, and even death,
because neither public nor private charity comes to their aid. How
absurd, then, to say that government has a right to control a man's
use of his own property, through fear that he may sometime come to
poverty, and ask charity.
4. Still a fourth answer to the argument is, that the great and only
incentive which each individual man has to labor, and to create
wealth, is that he may dispose of it according to his own pleasure
or discretion, and for the promotion of his own happiness, and the
happiness of those whom he loves.5
Although a man may often, from inexperience or want of judgement,
expend some portion of the products of his labor injudiciously, and
so as not to promote his highest welfare, yet he learns wisdom in
this, as in all other matters, by experience; by his mistakes as
well as by his successes. and this is the only way in which he can
learn wisdom. When he becomes convinced that he has made one foolish
expenditure, he learns thereby not to make another like it. And he
must be permitted to try his own experiments, and to try them to his
won satisfaction, in this as in all other matters; for otherwise he
has no motive to labor, or to create wealth at all.
Any man, who is a man, would rather be a savage, and be free,
creating or procuring only such little wealth as he could control
and consume from day to day, than to be a civilized man, knowing how
to create and accumulate wealth indefinitely, and yet not permitted
to use or dispose of it, except under the supervision, direction,
and dictation of a set of meddlesome, superserviceable fools and
tyrants, who with no more knowledge than himself, and perhaps with
not half so much, should assume to control him, on the ground that
he had not the right, or the capacity, to determine for himself as
to what he would do with the proceeds of his own labor.
5. A fifth answer to the argument is, that if it be the duty of
government to watch over the expenditures of any one person -- who
is compos mentis, and not criminal -- to see what ones tend to
poverty, and what do not, and to prohibit and punish the former,
then, by the same rule, it is bound to watch over the expenditures
of all other persons, and prohibit and punish all that, in its
judgement, tend to poverty.
If such a principle were carried out impartially, the result would
be, that all mankind would be so occupied in watching each other's
expenditures, and in testifying against, trying, and punishing such
as tended to poverty, that they would have no time left to create
wealth at all. Everybody capable of productive labor would either be
in prison, or be acting as judge, juror, witness, or jailer. It
would be impossible to create courts enough to try, or to build
prisons enough to hold, the offenders. All productive labor would
cease; and the fools that were so intent on preventing poverty,
would not only all come to poverty, imprisonment, and starvation
themselves, but would bring everybody else to poverty, imprisonment,
and starvation.
6. If it be said that a man may, at least, be rightfully compelled
to support his family, and, consequently, to abstain from all
expenditures that, in the opinion of the government, tend to disable
him to perform that duty, various answers might be given. But this
one is sufficient, viz.: that no man, unless a fool or a slave,
would acknowledge any family to be his, if that acknowledgment were
to be made an excuse, by the government, for depriving him, either
of his personal liberty, or the control of his property.
When a man is allowed his natural liberty, and the control of his
property, his family is usually, almost universally, the great
paramount object of his pride and affection; and he will, not only
voluntarily, but as his highest pleasure, employ his best powers of
mind and body, not merely to provide for them the ordinary
necessaries and comforts of life, but to lavish upon them all the
luxuries and elegancies that his labor can procure.
A man enters into no moral or legal obligation with his wife or
children to do anything for them, except what he can do consistently
with his own personal freedom, and his natural right to control his
own property at his own discretion.
If a government can step in and say to a man -- who is compos
mentis, and who is doing his duty to his family, as he sees his
duty, and according to his best judgement, however imperfect that
may be -- We (the government) suspect that you are not employing
your labor to the best advantage for your family; we suspect that
your expenditures, and your disposal of your property, are not so
judicious as they might be, for the interest of your family; and
therefore we (the government) will take you and your property under
our special surveillance, and prescribe to you what you may, and may
not do, with yourself and your property; and your family shall
hereafter look to us (the government), and not to you, for support:
-- if a government can do this, all a man's pride, ambition, and
affection, relative to this family, would be crushed, so far as it
would be possible for human tyranny to crush them; and he would
either never have a family (whom he would publicly acknowledge to be
his), or he would risk both his property and his life in
overthrowing such an insulting, outrageous, and insufferable
tyranny. And any woman who would wish her husband -- he being compos
mentis -- to submit to such an unnatural insult and wrong, is
utterly undeserving of his affection, or of anything but his disgust
and contempt. And he would probably very soon cause her to
understand that, if who chose to rely on the government, for the
support of herself and her children, rather than on him, she must
rely on the government alone.
XXII
Still another and all-sufficient answer to the argument that the use
of spirituous liquors tends to poverty, is that, as a general rule,
it puts the effect before the cause. It assumes that it is the use
of the liquors that causes the poverty, instead of its being the
poverty that causes the use of the liquors.
Poverty is the natural parent of nearly all the ignorance, vice,
crime, and misery there are in the world.6 Why is it that so large a
portion of the laboring people of England are drunken and vicious?
Certainly not because they are by nature any worse than other men.
But it is because, their extreme and hopeless poverty keeps them in
ignorance and servitude, destroys their courage and self-respect,
subjects them to such constant insults and wrongs, to such incessant
and bitter miseries of every king, and finally drives them to such
despair, that the short respite that drink or other vice affords
them, is, for the time being, a relief. This is the chief cause of
the drunkenness and other vices that prevail among the laboring
people of England.
If those laborers of England, who are now drunken and vicious, had
had the same chances and surroundings in life as the more fortunate
classes have had; if they had been reared in comfortable, and happy,
and virtuous homes, instead of squalid, and wretched, and vicious
ones; if they had had opportunities to acquire knowledge and
property, and make themselves intelligent, comfortable, happy,
independent, and respected, and to secure to themselves all the
intellectual, social, and domestic enjoyments which honest and
justly rewarded industry could enable them to secure -- if they
could have had all this, instead of being born to a life of
hopeless, unrewarded toil, with a certainty of death in the
workhouse, they would have been as free from their present vices and
weaknesses as those who reproach them now are.
It is of no use to say that drunkenness, or any other vice, only
adds to their miseries; for such is human nature -- the weakness of
human nature, if you please -- that men can endure but a certain
amount of misery before their hope and courage fail, and they yield
to almost anything that promises present relief or mitigation;
though at the cost of still greater misery in the future. To preach
morality or temperance to such wretched persons, instead of
relieving their sufferings, or improving their conditions, is only
insulting their wretchedness.
Will those who are in the habit of attributing men's poverty to
their vices, instead of their vices to their poverty -- as if every
poor person, or most poor persons, were specially vicious -- tell us
whether all the poverty within the last year and a half7 have been
brought so suddenly -- as it were in a moment -- upon at least
twenty millions of the people of the United States, were brought
upon them as a natural consequence, either of their drunkenness, or
of any other of their vices? Was it their drunkenness, or any other
of their vices, that paralyzed, as by a stroke of lightning, all the
industries by which they lived, and which had, but a few days
before, been in such prosperous activity? Was it their vices that
turned the adult portion of those twenty millions out of doors
without employment, compelled them to consume their little
accumulations, if they had any, and then to become beggars --
beggars for work, and, failing in this, beggars for bread? Was it
their vices that, all at once, and without warning, filled the homes
of so many of them with want, misery, sickness, and death? No.
Clearly it was neither the drunkenness, nor any other vices, of
these laboring people, that brought upon them all this ruin and
wretchedness. And if it was not, what was it?
This is the problem that must be answered; for it is one that is
repeatedly occuring, and constantly before us, and that cannot be
put aside.
In fact, the poverty of the great body of mankind, the world over,
is the great problem of the world. That such extreme and nearly
universal poverty exists all over the world, and has existed through
all past generations, proves that it originates in causes which the
common human nature of those who suffer from it, has not hitherto
been strong enough to overcome. But these sufferers are, at least,
beginning to see these causes, and are becoming resolute to remove
them, let it cost what it may. And those who imagine that they have
nothing to do but to go on attributing the poverty of the poor to
their vices, and preaching to them against their vices, will ere
long wake up to find that the day for all such talk is past. And the
question will then be, not what are men's vices, but what are their
rights?
Notes
1. To give an insane man a knife, or any other weapon, or thing, by
which he is likely to injure himself, is a crime.
2. The statute book of Massachusetts makes ten years the age at
which a female child is supposed to have discretion enough to part
with her virtue. But the same statute book holds that no person, man
or woman, of any age, or any degree of wisdom or experience, has
discretion enough to be trusted to buy and drink a glass of spirits,
on his or her own judgement! What an illustration of the legislative
wisdom of Massachusetts!
3. Cato committed suicide to avoid falling into the hands of Caesar.
Who ever suspected that he was insane? Brutus did the same. Colt
committed suicide only an hour or so before he was to be hanged. He
did it to avoid bringing upon his name and his family the desgrace
of having it said that he was hanged. This, whether a really wise
act or not, was clearly an act within reasonable discretion. Does
any one suppose that the person who furnished him with the necessary
instrument was a criminal?
4. An illustration of this fact is found in England, whose
government, for a thousand years and more, has been little or
nothing else than a band of robbers, who have conspired to
monopolize the land, and, as far as possible, all other wealth.
These conspirators, calling themselves kings, nobles, and
freeholders, have, by force and fraud, taken to themselves all civil
and military power; they keep themselves in power solely by force
and fraud, and the corrupt use of their wealth; and they employ
their power solely in robbing and enslaving the great body of their
own people, and in plundering and enslaving other peoples. And the
world has been, and now is, full of examples substantially similar.
And the governments of our own country do not differ so widely from
others, in this respect, as some of us imagine.
5. It is to this incentive alone that we are indebted for all the
wealth that has ever been created by human labor, and accumulated
for the benefit of mankind.
6. Except those great crimes, which the few, calling themselves
governments, practise upon the many, by means of organized,
systematic extortion and tyranny. And it is only the poverty,
ignorance, and consequent weakness of the many, that enable the
combined and organized few to acquire and maintain such arbitrary
power over them.
7. That is, from September 1, 1873, to March 1, 1875.
